Rights and Subjectivity: A Pre-History of Human Rights 184718605X, 9781847186058

Table of contents :
TABLE OF CONTENTS
ACKNOWLEDGEMENTS
INTRODUCTION
CHAPTER ONE
CHAPTER TWO
CHAPTER THREE
CHAPTER FOUR
CHAPTER FIVE
CONCLUDING REMARKS
NOTES
BIBLIOGRAPHY
INDEX

Citation preview

Rights and Subjectivity

Rights and Subjectivity: A Pre-History of Human Rights

By

Roberto Buonamano

Cambridge Scholars Publishing

Rights and Subjectivity: A Pre-History of Human Rights, by Roberto Buonamano This book first published 2008 by Cambridge Scholars Publishing 15 Angerton Gardens, Newcastle, NE5 2JA, UK British Library Cataloguing in Publication Data A catalogue record for this book is available from the British Library Copyright © 2008 by Roberto Buonamano All rights for this book reserved. No part of this book may be reproduced, stored in a retrieval system, or transmitted, in any form or by any means, electronic, mechanical, photocopying, recording or otherwise, without the prior permission of the copyright owner. ISBN (10): 1-84718-605-X, ISBN (13): 9781847186058

TABLE OF CONTENTS

Acknowledgements ................................................................................... vii Introduction ................................................................................................. 1 The Problem of the Subject of Rights Chapter One............................................................................................... 13 Freedom, Democracy and Friendship in Greek Political Thought Chapter Two .............................................................................................. 27 Divine Right and Ecclesiology Chapter Three ............................................................................................ 65 Feudal Right Chapter Four............................................................................................ 101 Juridical Sovereignty and Public Law Chapter Five ............................................................................................ 143 Natural Right and Liberty Concluding Remarks ............................................................................... 179 Notes........................................................................................................ 183 Bibliography............................................................................................ 195 Index........................................................................................................ 207

ACKNOWLEDGEMENTS

The author acknowldges the publisher Edition Rodopi BV for kindly granting permission to republish the introductory chapter “The Problem of the Subject of Rights” which first appeared as “Humanity and Inhumanity: State Power and the Force of Law in the Prescription of Juridical Norms.” In Evil, Law and the State: Perspectives on State Power and Violence. Edited by John T. Parry. Amsterdam: Editions Rodopi, 2006.

INTRODUCTION THE PROBLEM OF THE SUBJECT OF RIGHTS

One of the curious aspects about the history of human rights is that history has always been a problem for rights discourse; by which is meant that rights discourse has always tried to erase its own history, certainly to marginalise it. In Medieval law, rights that expressed the will of a legislator were accorded a prehistorical source in divine law, while the ancient rights and liberties of the people were often expressed to be immemorial, grounded in a mythical past that transcended history, even if carried through the vehicle of rulers and customs. With the development of the doctrine of natural rights, from the writings of late Medieval canon and civil lawyers right through to its apogee in seventeenth century political philosophy, the ahistoricism of rights was reified through the concept of nature in order to lend legitimacy to the claim of their universality, their application to all people at all times. That the subject of rights in the modern conception of human rights is the human being itself in place of nature has, through the reduction of subjectivity to a metaphysical humanism, further alienated the historical conditions of human rights from their normative claims. This brief introduction is a preliminary attempt to analyse the problem that history creates for the discourse of human rights.

The Paradox of Human Rights Let us begin with consideration of an inherent conceptual tension that marks the idea of human rights. It has been remarked that an essential paradox of human rights is that while the individual bears rights by nature, simply because he or she is human, and independent of his or her role or place in society, these rights presuppose an already instituted community or society, since their function is to govern relationships between individuals.1 Already in Kant’s Doctrine of Right, part of the Metaphysics of Morals, the conceptualization of an innate right is dependent upon a thesis of sociability as man’s highest end. Kant declares that the only innate right, that is, the only right that need not be acquired and which is

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Introduction

internal to human being, is that of freedom. By “freedom” he understands the “independence from being constrained by another’s choice”, “insofar as it can coexist with the freedom of every other in accordance with a universal law.”2 This internal and indivisible right is an original right belonging to every man by virtue of his humanity. It is composed of three capacities or spheres of action: innate equality, defined as independence from being bound by others to more than one can in turn bind them; the quality of being one’s own master (sui iuris); and the authorisation to do to others anything that does not in itself diminish what is theirs. It is clear that each of these expressions of freedom imply a relationship with other individuals who possess the same right to freedom. From then on in the Doctrine of Right, all further discussion of man’s external freedom and the possibility of acquiring rights through the imposition of external laws revolves around this paradoxical axiom: that the internality of innate freedom only gives rise to moral laws, rights and duties because of the existence of external relations among individuals who are already bound to one another by this primordial right. In the end, this paradoxical relationship of right is perhaps a reflection of the general thesis, apparent from reading the Critique of Judgment together with the minor works, that sociability is the origin and essence of man’s humanity, rather than its goal.3 Karl Marx also alludes to this paradox of human rights, though he does so by reversing the Kantian analysis. In On the Jewish Question he makes the claim that rights, far from being the premise of social behaviour and communication, are a cause for the individual’s separation from his community, which leads to the individual’s separation from himself. The argument is that the right of man—importantly, man is conceived as already a member of civil society—manifests itself as the right of the “restricted individual”, the individual who, separated from his community, is withdrawn into himself. Right recognizes man’s private interest and desires, reflecting the authenticity of the egoistic, unpolitical and natural individual. For Marx, rights are created by a state that has emerged separate from civil society, and that is nothing more than the form of organization which the bourgeois necessarily adopt for the mutual guarantee of their property and interests.4 So, the right of man to freedom is based not on the association of men but on man’s isolation from the collective, a separation that is self-divisive, its practical application being the right to private property.5 Though Kantian and Marxist philosophy assume antagonistic positions on the political function of human rights, they both acknowledge, in different ways, that human rights are conceivable only within the

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framework of a theory of human sociability, a political theory. Thus, in the discourse of human rights, at least from the nineteenth century, the bearer of rights is a ghost-like figure: either, as Marxist critique would have it, he is isolated and monadic to the point of having no actual social identity, or, as suggested by Hannah Arendt, he is an empty form, an abstraction, a creation of post-Enlightenment thought whose aim is to provide protection against the new sovereignty of the state and the new arbitrariness of society. So, says Arendt, “from the beginning the paradox involved in the declaration of inalienable human rights was that it reckoned with an ‘abstract’ human being who seemed to exist nowhere, for even savages lived in some kind of social order.”6

Humanity as the Subject of Rights The obvious, seemingly intractable question that arises from this paradox is how to define the subject of rights? Or, to be more precise, knowing that it is the human being that is the subject of human rights, what meaning do we ascribe to the signifier “human”, or that of “humanity”? At one level, it might be argued that the answer to this question lies in metaphysics: that the question of the subject in the discourse of human rights is essentially part of the broader philosophical enquiry into the metaphysics of subjectivity that we have inherited from the phenomenological tradition, in particular from Heidegger and his followers. Indeed. Heidegger’s challenge to modern humanism can quite easily be directed specifically towards juridical humanism. For Heidegger, the valorisation of the human subject is the product of a form of subjectivity that conceives of being only through the reference of man; and so, humanism is essentially a form of anthropology, an interpretation of man that already knows fundamentally what man is and hence can never ask who he may be.7 Juridical humanism therefore presents an ahistorical thesis of human rights. It prevents us from asking questions about the historico-political conditions that gave rise to the idea of humanity as the subject of rights. Such questions would inevitably reveal the historically contingent foundation of the discourse, and ultimately undermine its fundamental premises—the inalienability and universality of human rights. Let us therefore suspend the metaphysical claims that the discourse makes for itself, and instead inquire as to how the subject of rights actually has been constructed and for which purposes. Arendt’s analysis in The Origins of Totalitarianism, which associates the end of the rights of man with the decline of the nation-state, proceeds from an historical study of the events surrounding the treatment of minorities and refugees in the

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Introduction

early twentieth century.8 The proclamation of human rights was to protect individuals who were no longer sure of the estates to which they were born or of their equality before God as Christians. Human rights were eminently suitable to this task, since they proclaimed themselves to be inalienable, situated outside the political order and irreducible to other rights or laws. Such needs brought the juridical principle, man as the source of human rights, into a direct relationship with the political principle, the people as sovereign in government. Through this relationship the question of human rights was inextricably blended with the question of the emancipated sovereignty of the people, so that the representational figure of man within human rights gradually faded to reveal the face of the people. Henceforth, rights could be claimed not by an individual as a distinct political being, but by an individual who could identify him or herself with a sovereign people. The Minority Treaties that emerged after the First World War, largely as a result of the redrawing of territorial boundaries, were so dependent upon the idea of national sovereignty that they had the effect of empowering nation-states to either assimilate or force beyond their borders populations which had not been identified as sufficiently governed to warrant self-determined nationhood. The problem for the masses of stateless persons that were created by the two world wars was that it became difficult for them to claim their human rights once they lost their political status as citizens of a state. In other words, the declaration of human rights was of no use to persons who had fallen into the state of rightlessness, given that human rights had been conceived of in purely political terms. Arendt explains the practical effect of the paradox of human rights in this incisive passage: The conception of human rights, based upon the assumed existence of a human being as such, broke down at the very moment when those who professed to believe in it were for the first time confronted with people who had indeed lost all other qualities and specific relationships - except that they were still human. The world found nothing sacred in the abstract nakedness of being human.9

The coupling of “man” and “citizen” in the title of the French Declaration of 1789 already heralds the fact that the naturalness of man must give way to the teleology of political association—the second article affirms that the goal of every political association is the preservation of the natural and indefeasible rights of man—and that the true form of political association, in which sovereignty resides, is the nation. In fact, as many historians have argued, the document cannot be understood outside of the

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context of the socio-political changes that were being instituted around the events leading to and following the French Revolution. At the structural level, one of the permanent effects of the Revolution was to dissociate the state from the royal person and replace it with the nation, in which the concept of citizenship attributed a political identity to an otherwise metaphysical subject. Of course, since the American and French declarations in the eighteenth century, there has been a perpetual challenge to the equality of rights. The citizen of a nation has become the international citizen. The rights belonging to man generally have been extended and adapted to women and children specifically. The political rights of the citizen have been augmented by the economic rights of the worker, and the citizen’s right to civic participation has been supplemented by the social right to welfare. Finally, in a challenge to the Eurocentric tradition of valorising the individual, we have come to recognize the special rights of peoples. The question of equality that continues to haunt the contemporary discourse on human rights, has, in a way, diverted attention from the theoretical problems of subjectivity. It is a fact that so many human rights scholars are absorbed with the principle of equality, in arguments on whether, and the extent to which, the universality of human rights may be reconciled with cultural and religious relativism, that the question of the subject of rights is evaded. Considering the relatively rapid multiplication of rights in international law, and the impressive array of institutions and legal machinery concerned with their enforcement, it is easy to ignore the process of the progressive generalization of the subject of rights. This process is perhaps more clearly observable in the development of international humanitarian law, particularly in its new concern with international crimes. The concept of crimes against humanity, which we have inherited from the constituting Charter and judgment of the International Military Tribunal at Nuremberg,10 has from its inception struggled to define the humanity that it seeks to protect. In the decision on the Erdemovic case, the International Tribunal for the Former Yugoslavia defined “crimes against humanity” in terms of serious acts of violence that harm human beings by striking what is most essential to them: their life, liberty, physical welfare, health and dignity. However, it continued, “crimes against humanity also transcend the individual because when the individual is assaulted, humanity comes under attack and is negated. It is therefore the concept of humanity as victim which essentially characterizes crimes against humanity.”11 Unfortunately, with this definition we are no closer to understanding the “humanity” that is the object of the crime, or how it is that humanity is

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Introduction

negated. After all, we rarely justify our national criminal laws on the basis that an assault on an individual is an attack on or deprivation of humanity. In the end, the formulation and application of crimes against humanity must turn towards some analysis of the factual state of affairs and psychological conditions of the perpetrator rather than a determination on whether the victim has been deprived of his or her humanity. So, the Rome Statute of the International Criminal Court defines crimes against humanity as acts “committed as part of a widespread or systematic attack directed against any civilian population.”12 The crime depends not on whether humanity has been the victim of the aggression but whether the acts can come within the rubric of a systematic policy directed against a civilian population that is identifiable as a group.13 The anomalous legal position that is created is that the person who murders twelve individuals in some psychological state of rage, where the victims do not share any particular relationship that has been targeted by the murderer, may be considered a criminal under national laws but would not be considered to have attacked humanity in its essence; whereas the person who, motivated by racial, political or cultural aspirations to hegemony, plans and executes an attack on twelve members of a particular minority, will have committed an international crime that has transcended the harm caused to the individual victims. Notwithstanding the indeterminacy that rests with the process of subjectification, modern humanitarian discourse is committed to the idea of humanity as a victim of certain international wrongs. And where there is not even the role of the perpetrator to fall back on, as with the emerging rules on humanitarian intervention, then other principles of the sacredness of human life need to be invoked. In the case humanitarian intervention, humanity is represented by the pure experience of human suffering. If the innocent woman, child or family that is deprived of food, shelter or medicine as a consequence of a civil war is deserving of humanitarian assistance, it is because we—that is, the international community of states—have decided not to tolerate some human suffering: namely, suffering that is a by-product of a type of violence which, because directed internally, undermines the integrity of the state. On the other hand, it cannot be ignored that the concern with human suffering at the level of international law, and the apparent willingness of state actors to sacrifice their territorial and jurisdictional sovereignty in humanitarian matters, coincides with the emergence of what we may call, borrowing from the work of Michel Foucault,14 the new biopolitical concerns of the state: which is to say, an interest in biological life, in particular, in sustaining and managing life, as a way of exercising power over individuals.

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7

The Liberal State and Juridical Humanism The liberal tradition of human rights, which extends as far back as the Habeas Corpus Act of 1670 and the Bill of Rights of 1689, revolves around the assumption that the division between the state and society cannot be reconciled, and thus that it is the task of politics to manage the relationship so as to refrain as much as possible from interference with the individual’s liberty. The assumed antagonism between society and state is no doubt grounded in the socio-economic theory of the nineteenth century, but the terms of this debate may be traced back to the seventeenth century, when the theory of sovereign power was being formulated as a problem of the balance of political authority and the individual’s natural rights. Thomas Hobbes’ preoccupation with the English civil war lead him to insist that the creation of a body politic, in the guise of Leviathan, entailed the surrender of individual rights. However, because this surrender had as its sole rationale the maintenance of the personal security of each individual, the right to personal security was proclaimed as the one right that could not be alienated. Thus began a tradition of theorising sovereignty in terms of individual rights that would be transformed into civic rights upon the state coming into existence in order to temper the instability of natural society. If politics was henceforth a matter of constructing a social space that would preserve the integrity of the individual’s freedom, this freedom was increasingly viewed in civic or political terms, in other words, in relation to the theory of sovereign power. The neo-republican idea of liberty in early Modern England emphasized the collective aspect of freedom. Influenced as they were by Machiavelli’s discourses on Roman republican ideals, writers such as John Milton, Marchamont Nedham and Algernon Sidney understood by liberty not the individual’s sphere of independent action, but the state of living under the rule of law rather than the arbitrary coercion of another, which they compared to the condition of slavery.15 This particular interpretation of civic liberty lost much of its force when the emerging social sciences, particularly political economy, separated the notion of society from the doctrine of the state of nature, thus revealing its complex interplay of personal economic interests with the existence of multiple forms of social organisation. Nonetheless, the idea that the rule of law is the vehicle through which individual rights can be reconciled with the survival of a body politic, which was bequeathed by the early Modern theory of civic liberty, came to form an integral part of later liberalist thinking. Let us not forget that when John Locke proposes that the individual has a natural right to property, he

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Introduction

makes it clear that the right itself is of little value without the political institutions to guarantee it—on its own, natural right is merely the vanishing point from which political society must be constructed.16 What is truly essential to human existence is less the natural right to property than the values associated with the productivity of labour and the economic utility of that right. Hence, for Locke the pre-eminent institution of political society is the legislative power, which, as an extension of the individual’s natural legislative power, submits the latter to the rule of law.17 When, during the eighteenth century, the ideas of political equality and popular sovereignty began to dominate political philosophy, liberal ideology looked to the concept of democracy to provide an artificial means of overcoming social inequalities and the political effects of disparities in wealth. As a legacy of the feudal economy, these social inequalities stood in the way of the theory of liberty based on the security of the individual’s economic interests. The legal fiction of democracy, far from dismantling inequalities and social differences, transposed them into legally recognised relationships, predominantly contractual in form. The importance of this legal fiction, particularly for the American colonies which relied on a rationalist conception of freedom to found their independence movements, was that the state was reduced to a purely structural mechanism for protecting the natural laws of the circulation of commodities and social labour. Consequently, the rule of law came to serve the democratic principle that instituted artificially equal relations among individuals. The legacy of the development of liberalism for the modern discourse of human rights is twofold. In the first place, human rights have been stained with the assumptions of liberalism, and the association of freedom with enlightened self-interest remains to be properly severed. As we have already suggested, the abstraction of “man” as the subject of human rights has always entailed some political identity. Liberalism was able to create an identity because it likewise utilised the individual being as the ontological subject of the political system. Liberalism has as its principal objective the protection of the liberties of the individual political subject, though these liberties are merely those rights necessary for the individual to function within that civil or political environment. In this sense, the ascription of rights through liberal ideology is a self-fulfilling prophecy; it is constitutive of the very system that purports to be the grantor and guarantor of those rights. That is to say, the liberal subject, with all his or her inherent rights, is as much the foundation of the liberal political order as a product of it.

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When “nature” was replaced by “man” and later “humanity” as the source of inalienable human rights, these rights initially took the form of liberal rights, since the concept of liberty or freedom was bound up with the philosophy of the individual, the individual taken as a social being whose goal is to actualise his or her natural aspiration to freedom through the mechanism of a political order. Needless to say, this particular form of legal subjectivity was supported by other disciplines or systems of knowledge that declared the individual being an epistemological subject: the transition from the natural to the social sciences was one of the paradigmatic historical processes that nurtured the new philosophy of subjectivity. The emergence of social and economic rights, including the right to self-determination, to supplement civil and political rights, has not in any significant sense undermined the liberal foundation of human rights. If the progressive generalisation of the subject of rights has created a subject that is universal in the sense of being devoid of all socially constructed properties, nonetheless, the prescription of this juridical norm and the laws that regulate its protection depend upon the presence of national sovereignty and the political institutions that give it its force. The relations of power that allow such institutions to operate and laws to take effect are, in fact, reified by the enunciation of human rights. It is not merely a case of the sovereign state making possible such universal rights through institutions and laws that conform to the juridical norm it has created, but of the juridical norm of human rights making possible the perpetual existence of the sovereign state. The implicit argument here is that this relationship between the modern state and human rights is only seemingly paradoxical: each time that human rights are declared or enforced against a state institution, the legitimacy of the state is thereby reinforced; after all, on our hypothesis, the state depends upon the existence of an individual who possesses rights which the state recognises as fundamental and constitutive on a political level. In the second place, it has become virtually impossible to conceive of human rights outside of the modern forms of democratic rule, though this is an historical rather than philosophical equation. We have encountered the argument that, as a consequence of the development of human rights in the context of the emerging nation state, the actual subject of human rights was conceived as necessarily an individual who acquires the political rights of citizenship; absent this acquisition, the individual is juridically naked. Where the English civil war set the course for political theory’s concern with the balance between sovereignty and individual rights, the French Revolution reset the focus on political power and the individual in

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Introduction

terms of the possibility of achieving liberty through the mechanism of popular sovereignty. Rousseau’s starting point for critique of the liberal order was projected onto a new, post-revolutionary plane by Tocqueville. For Rousseau, the artificial role of the individual in liberal thinking must give way to “natural man”, the individual who is not already socially constructed. It is inequality, as the natural condition of mankind, which must serve as the starting point for rectifying the beach between the state and civil society. As in a theoretical camera obscura, Rousseau’s natural society, marked by inequality among individuals, becomes Tocqueville’s society of equals, in which the condition of equality founds the principle of political freedom. For Tocqueville, the accidental nature of inequalities and the competition they create may be overcome through each individual’s acting out his common traits and resemblance to others, a condition which is best implemented by a democratic state in which the law reflects the essential equality of human beings.18 The relationship between democracy and human rights was constructed when popular sovereignty, borrowing on a liberal legacy which it reacted against and thereby could not overcome, was conceived in terms of rights to political participation held by individuals identified as citizens. Eschewing the ancient forms of democracy, modern political theory married the notion of the citizen as legislator and the individual as legal subject through the principle of the equality of all before the law—an adaptation of the rule of law to the doctrine of popular sovereignty. The theoretical framework for modern democracy is a nexus between the fundamental liberal preconditions (the liberty and security of person and property)—which, as Hobbesian and Lockean philosophies attest, are not merely compatible with but may be best protected within monarchical systems of government—and the principle of political equality. The functional result is the constitutional dependence of all rights upon a political structure reflecting the dual capacity of the individual: as a citizen who expresses his or her political status through participation in sovereignty, and a legal subject who expresses his or her subjection to the laws of state which, in turn, recognise individual rights as against state instrumentalities and other citizens.

The Relationship of State Power and Juridical Right The modern doctrine of human rights has been constructed on the foundations of a positivist conception of juridical norms. This conception is dependent upon two assumptions. The first is that there is a division between state power and juridical right, a division which makes it possible

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for law, as an external force, to act upon the exercise of political power that is to say, the law acts from outside political power to regulate its exercise by pronouncing upon excesses or abuses that interrupt the individual’s enjoyment of his or her rights. The second is that the norms of human rights intrinsically are expressions of positive law created by the state in the exercise of its legislative sovereignty. Under the first assumption, the division cannot be reduced to one of politics and law, since their interdependence is precisely what defines the state under the rule of law. Rather, the division is transcribed on the plane of legitimacy and legality, in terms of the following relationship: the legitimacy of a particular exercise of political power is always a question of legality, of its conformity with existing principles of right, whether or not constitutionally prescribed. On its face, the distance between political power and juridical right supports the thesis of the necessity of the institutions of right intervening to ensure that the political organisation and governance of a society operate in accordance with prescribed norms. What remain less acknowledged are the relationships of power by which those norms are instituted and affirmed in the dual name of a legal science that claims to be autonomous and the liberal-democratic political form. In fact, the relationship between legitimacy and legality is a disguised reference to an earlier, Medieval typology that rendered divine law and natural law the guardians of right and justice over the legislation of the prince. However, it would be misleading to suppose that human rights now speak with the singular voice and authority of natural law, since what makes human rights possible is that they are inscribed in the very political order that is a condition for their recognition. The division of political power and juridical right is a fiction, one that conceals the fact that law derives its force from the existence of political institutions which pronounce the law as a matter of positive rules—even the norms of socalled inalienable and universal human rights do not escape this constitutional paradigm. This leads us to the second assumption. The development of human rights at international law is intimately tied to the parallel development of the sovereign nation state, an entity whose sovereignty jointly derives from the exclusive jurisdiction to make laws for its people and its freedom from the coercive authority of any other state. The concept of state sovereignty has both an external and internal signification, and they are mutually constitutive and reinforcing: externally, a sovereign state is recognised as an independent body at international law; internally, a sovereign state exercises supreme municipal power.19 The emergence of international institutions concerned with the declaration, observance and

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Introduction

enforcement of human rights may be considered an effect of the stability and permanence of the notion of the sovereign state rather than a challenge to it. In the first place, the legitimacy of international law is always a question of state participation and promotion. This participation involves both accession to international instruments—the treaties, declarations and conventions—and their ratification through the legislation of enactments, rules and codes. In both cases, and precisely in their confluence, it is the state’s sovereign power to legislate that makes possible the juridical recognition and protection of international human rights. Moreover, though the state notionally may have been replaced by certain international bodies in terms of the source of legal prescriptions of human rights and the bureaucracy that attends to it, the claims of individuals largely are mediated by and depend upon relevant state institutions and laws for their enforcement (putting aside the emerging field of international criminal responsibility). The force of law behind the doctrine of human rights is that it declares rights in the name of a humanity which it—or at least the political structures that support it—defines in a particular way. It is facile to propose that, for all its metaphysical abstractness, we do not know the subject of human rights. Instead, it is imperative that we inquire into the construction of the subject that is presupposed by the discourse and practice of human rights, with all the juridico-political history that is embedded within this form of subjectivity. The principal thesis we have alluded to is that the prescription of juridical norms around the concept of humanity is not a benign development of a humanistic ideal that proclaims the sacrosanctity of human life, nor the final exposition of a philosophical position on the liberty of the individual against the intrusive effects of state sovereignty; rather, it is an effect of the various forms of power exercised within the institutions of the modern liberal state and through the instrument of law.

CHAPTER ONE FREEDOM, DEMOCRACY AND FRIENDSHIP IN GREEK POLITICAL THOUGHT

In the ancient Greek texts of political philosophy politics is concerned less with the origin and justification of authority, or with the relationship of the individual to the whole, than with the ability of law to give effect to the invention of freedom, to regulate the socio-political field made possible by the existence of free and equal men; hence, the philosophic concern with the notion of free public space. Within this type of analysis the concept of the individual political and juridical subject remains a remote and unformed image. The nature of politics does not lie in the state of being of the individual, nor as power inhering as a possession or a right; it lies in the formulation of the principles through which the forces of natural difference and the unified interests of political society are managed and rendered just. Such a perspective suggests that modern political and legal thought, dominated as it is by the juridical-political-metaphysical model of sovereignty and corresponding concept of human rights, may gain some clarity through distancing itself from this model and revisiting a mode of philosophical enquiry in which the individual subject has no privileged role.

The Politics of Friendship All justice is in relation to a friend, says Aristotle. Justice presupposes a number of individuals in partnership, and so it is unsurprising that the oikos serves as the primordial source for the various types of partnerships with which a schema of political ontology will be constructed. The friendship of husband and wife is the exemplary union of equality through utility; that amongst brothers resembles the partnership of comradery or civic friendship; the relation of the father to his children is characterised by superiority and inferiority, the benefactor to the benefited, natural ruler to natural subject; friendship amongst the young takes the strain of

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Chapter One

pleasantness. “Therefore in the household first we have the sources and springs of friendship, of political organisation, and of justice.”1 If the Politics commences with an analysis of the management of the household it is not merely because the state is composed of households, nor simply that the household functions as a microcosmic model, even if we cannot overlook that these are elements of the logic of Aristotle’s arguments. It is principally the case that his ethical system has already inculpated friendship as the condition of justice. Hestia, the eternal virgin whom Zeus has privileged and entrusted with the role of protecting the household in lieu of marriage, also presides over the sacred flame of the polis, the common hearth, which is preserved in public building and office rather than hereditary priesthood. Xenophon identifies the goddess with the city’s very legality.2 Friendship, beyond the assurance of reciprocity, enables one to directly respond to the needs and urgency of others; it creates an environment within which responsibility is nurtured. The Greeks encourage us to conceive of responsibility without reference to the subject, outside the forces of self-consciousness. It is true that Homer’s heroes know nothing of the word “responsibility,” since the work of the gods claims a presence at the heart of all significant human action; they cannot or dare not break into the immanence of guilt so as to frame a crime in terms of a guilty party and a victim,3 since guilt is apprehended as not only too vast to be attributed but also too saturated in human affairs to be located and localised. However, the space opened up by the development of democratic principles and practices inculpates an entire discourse on the ethical-political conditions for the correct and regulated functioning of society at the level of the individual’s relations with others. Classical politics evaluates the responsibility inherent in friendship in terms of a method for defining political order. For Aristotle it is the search for excellence, the good and just life, which ultimately grounds political order. This teleological process characterises the epitomic or primary friendship, to be sure, but also the functioning of political community, the work of the state. If the state’s legitimacy is derived from the consent—the independent intentionality of will—of individuals, then its own purposes and achievements are informed by a certain inherent value, and its actualisation, of individual human life, what the Humanistic philosophers would refer to in the language of natural rights. Instead, the classical Greeks see the state as the culmination of an organic process by which the household, and ultimately the friendships it both depends upon and develops, are reified in a foundational and overarching structure rather than regressively divested of meaning in the search for a more essential

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unit of being. It is not without significance that the etymology of the name Hestia, Socrates informs us, points to an association with the term ousia, or essence; the idea that sacrifices should be first offered to this keeper of the hearth is rational enough if Hestia is taken to be that which participates in ousia.4 Of course, the Greek individual is no stranger to himself. It is even the case that a precise and laboured construction of a relationship to the self is the condition for the type of struggle whose end is the actualisation of human virtue and good through certain forms of participation in friendships. It is difficult to imagine one without the other when, at the level of the state, the socialisation of the common hearth is driven by a concept of freedom, neither distinctly individual nor purely collective, rather than the impulse to sacrifice individual identity for the sake of the destiny of the collectivity. It is the relation between the two modes of experiencing freedom which interests us. Their correlation has its earliest expression in Plato’s conceptual linkage of the natural constituents of the state (wisdom, courage and self-discipline) and the impulses of the soul (reason, spirit and appetite) as the prerequisite of justice. Justice is not a function of the state or soul, as something which is external to it; rather, it reigns where the conflict within the soul or state is subdued in favour of a harmonious inner order, where each constituent principle operates without interference of the work of the others, leading to the beauty of a selfmastered unit.5 Plato passes over the logic of analogy to institute a relation of necessity between the justice of the soul and that of the state, lest we believe that justice can be fractured or divided in this way: its essence presupposes being in relation to itself, “the health of the soul which is also the precondition of the health of the state.”6 The ethical-political question that consistently layers the landscape of antiquity—how one can govern others without first governing oneself— assumes an additional problematic in the milieu of “radical democracy.” The active, ethical practice upon the self, which Michel Foucault understands as a positive power, goes beyond the enslavementemancipation function of the exercise of self-mastery; it is a power that one brings to bear on oneself in the power one exercises over others.7 Selfcontrol, moderation and balance, and the restraint of bodily pleasures, are as important virtues as the cardinal ones of prudence, courage and righteousness. Together they form the areté proper to political power, a composite and mutually constitutive practice of internal and external regulation. We can see how this axiom of freedom serves to institutionalise at the most fundamental, ethical level the hierarchy of status which the politics of the city-state is obliged to respect and rigidify.

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The person under the authority of others is not expected to exercise selfmastery but merely to obey external instructions, whereas the person who leads others must command his own nature if the nature of others is to be guided towards a collective orderliness.8 Nevertheless, democracy brings to this process of institutionalisation an aporia in relation to the two general modes of freedom. There is in fact a disjunction at the very heart of democratic citizenship of, on the one hand, the active freedom derived from the individual’s practice of sovereignty of the self, and on the other, the passive freedom whose principle is put into effect in the apparatus of political equality. How does one translate into the public sphere a practice of freedom and corresponding body of truth premised upon the possibility of dominion over others when all of one’s political friends are equally virtuous? The processes of ethical subjectification ensure that a certain and consistent moral structure govern and measure, among other things, sexual behaviours, comportment in relationships, public activities and a stance towards civic duties; in short, all of those visibilities which bind the individual person and his fellow citizens to a common domain of status recognition, security and conformity. However, this shared interest cannot but emphasise the false freedom which political equality instates and legitimates, the deficit that results from the smoothing out of power relations across a polymorphous entity, this pure invention, this abstraction which bears the title of political society, whose only description is that of the community of friends. And yet, what makes this or that citizen my friend, stripped as he is of all that which connects him to the household, and to the relationships of domination and submission, those with lesser virtues and those with greater, and ultimately to himself, the subject of his own art and work? Is this not the great crime of radical democracy, which both Plato and Aristotle are at pains to prosecute—the separating of man from his self, from his aesthetical existence, for the sake of an artificial entity?

Aristocracy and the Rule of the Poor It is a well settled irony of the flowering of the Athenian democratic constitution that all the influential reforms arrive through heralds whose importance betrays their education, nobility, enfranchisement and wealth: Solon, Pisistratus, Cleisthenes, Pericles. It is a mocking note to anyone who might imagine that democracy aims to leave behind this aristocratic club, that its origin derives from the revolt of the demos, that mass of unnameable people whose very marginality qualifies them for a political part

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through an entity which does not pre-exist its own political endowment. The demos is not conceivable without the laws of Solon or the constitutionality of Cleisthenes, and after the death of Pericles it succumbs to the typical vices of political decadence: corruption, short-sightedness, pandering to the majority, and the insecurity of foreign alliances and wars. The legacy of this tradition haunts the Classical theory of democracy. The demos, as a majority-part of society, may very well subsume the whole, for it is the people and not any particular numerical phenomenon that constitutes and propels the part, but its movement remains indebted to individual figures of prominence and wealth. Pericles, son of Xanthippus, chosen by the city for his intellectual gifts and his general reputation to make an appropriate speech in praise of the war dead, confirms the participatory function of his audience in the government of the state. No one, so long as he has it in him to be of service to the state, is kept in political obscurity because of poverty…and I declare that in my opinion each single one of our citizens, in all the manifold aspects of life, is able to show himself the rightful lord and owner of his own person…9

These are the potentialities at issue: the appearance of the poor, dragged from their otherwise social obscurity, and the mastery of the self. And yet without the like of Pericles, with their heritage and education, the demos would lack the requisite culminating force to transform these potentialities into tangible, if ideological, institutions. It is the role of such leaders and reformers to serve as the fountainheads for the institutions; their influence permeates the constitutions which simultaneously purport to suppress them. The association of democracy with the rule of the poor is explicit in Aristotle (“the real difference between democracy and oligarchy is poverty and wealth”10) and implicit in many other commentators—Athenagoras himself made the point that whilst the rich are the best people for looking after money and the intelligent the best counsellors, it is the many who are best at listening to the different arguments and judging between them.11 For Socrates the liberty of the poor is the founding axiom for democracy and also the source of its malady. If we are to follow his reasoning, democracy must be understood in terms of the conditions for the transitions surrounding its birth and death. Democracy is born from the deterioration of oligarchy. To the extent that oligarchic rulers owe their offices to their wealth, they have no interest in prohibiting by law the wasteful expenditure and financial promiscuity of certain prodigal youth; in fact, their object is to increase their own wealth by feeding upon the licentiousness of the once noble sons through lending money on interest

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on the latter’s property. The honouring of wealth above sober and temperate virtues cannot but reduce to poverty men of no ignoble quality, fostering the drone and pauper element in the state. This element is precisely the sickness which will ensure that the social body suffer from internal war, an awakening to the arbitrary and dependent authority of the elite rulers, the disease of factionalism and general disunity. Democracy arises when the many poor win victory, put to death some of the other party, drive out others and grant the rest an equal share in citizenship and offices. Yet, how is this unbalanced body to survive? Now every man has liberty and freedom of speech, each an unbridled license to arrange for his own pleasures. It is indeed a superficially beautiful polity, a haven for diverse and multicoloured characters and habits, attractive as are brightcoloured things to children. As if in a bazaar of constitutions, each person chooses for himself the organisation of the state that suits him. The freedom to hold or not hold office, to make war or keep peace when others do so, to roam the streets with convicted criminals who slip in and out of the crowds like the revenant—this tolerance of democracy promotes its superiority over the solemn pronouncements of the founding city, regulations which set the austere course and lifestyle for the creation of good and fair citizens, and ultimately qualified rulers: how superbly it tramples underfoot of all such ideals, caring nothing from what practices and way of life a man turns to politics, but honouring him if only he says that he loves the people!12

Anarchic and motley, assigning a kind of equality indiscriminately to equals and unequals alike, democracy breeds an excess of liberty which, analogous to the constructive and destructive roles of the insatiable lust for wealth within oligarchy, debilitates the body with unrecognisable and nonproportional relations: the ruler resembles the subject, the parent resembles the child, the foreigner and resident alien feel themselves the equal of the citizen, the teacher fears the pupil who does not fear the teacher, the purchased slave is no less free than its owner, and male and female enjoy the same spirit of freedom. As any excess is wont to bring about a corresponding reaction to the opposite, democracy provides the soil for the growth of tyranny. The class which dominates the political speeches and business transactions facilitates the distribution of shares of the wealth held by the propertied class to the people, the mass of quiet cultivators who possess little property, eliciting action in defence by those thus plundered. In the assembly, where the untrammelled exchange of speech is the highest manifestation of liberty, the latter are branded oligarchs, revolutionaries against the people, and a fracas of impeachments,

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judgments and lawsuits ensues. For its part the demos appoints and reveres one man as its champion and protector, a person whose masterful control of the docile mob makes him the leader of a faction against the property owners. Driven into exile and then restored in defiance of his enemies, he returns a finished tyrant. What allows oligarchy and democracy to stand in this juxtaposed relation is not just that one signifies a state ruled by the rich and the other one ruled by the poor; nor just that each owes its systematic destruction to the principle upon which it is founded, wealth and liberty respectively; there is something more intrinsic and active involved, which Socrates’ myth of origins and decline absorbs in the guise of improbability. In oligarchy it is the uncircumscribed pursuit of wealth that leads to the fractional demise to poverty and its corollary properties—envy, distrust and lack of confidence in the ruling elite. In democracy the equally uncircumscribed lust for absolute freedom creates a hiatus from which the unqualified and identity-less poor will need to conjure an icon of difference in the form of a charismatic and self-sufficient leader. In the one state, the excess of minority wealth deteriorates into majority rule; in the other, the excess of majority liberty deteriorates into sole rule. In the one, the issue of difference with the many nameless poor polarises a constitution which then forces a self-divestiture of power towards depolarisation and classlessness; in the other, the issue of sameness with the few privileged rich sustains an effective socio-political homogeneity, only to find itself lacking the concentration of power that would give it order and which it reinstates in the extreme form of tyranny.

The Political Wrong Jacques Ranciére’s reading of the classical theorists invests some significance in the concept of the fundamental wrong or miscount of the parts grounding the ancient democratic constitution. The wrong is constituted in the appearance of the people as the demos, whose only property is the freedom each person shares with everyone else. The wrong count of the parts of the whole, which makes possible and meaningful the equation of this unqualified part (the poor and anonymous mass) with the whole community, disturbs the natural order of domination by the rich, the noble, the virtuous, in short, the ranked. The disruption institutes the conflict or contention between the parts that is peculiar to politics. The empty quality of equality which attaches itself to the classification of freedom serves as the mechanical hub of the wrong. But this is no wrong which may be regulated, conciliated or negotiated in any way; it is the

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pure logic of conflict: the political subjects the wrong sets in motion, far from being accidental objects of the strife or disagreeable state of affairs which pits them against the other, are subjects whose very existence is the mode of the manifestation of the wrong, the source of the strife. The double paradox of democracy is precisely that the unequal count of the people that is simultaneously whole and part (first paradox) reveals a dispute by this part that is whole in the very name of the wrong (the natural domination of artificially equal entities) that makes it the other party (second paradox). It is only with the processes of subjectification, whereby the individual as an equal and otherwise property-less speaking subject is constructed, that the relationship between the appearance of the demos (politics, strictly speaking) and the distribution of social bodies (police or government) can be processed. Political subjectification redefines the field of experience that gave to each their identity with their lot. It decomposes and recomposes the relationships between the ways of doing, of being, and of saying that define the perceptible organization of the community, the relationships between the places where one does one thing and those where one does something else, the capacities associated with this particular doing and those required for another.13

A person’s use of his wealth, his treatment of members of his household and friends, ostentatious or decadent comportment, labour, holding office, commitment to state duties (notably the armed forces), the use of the law courts, speech in the Assembly, education—these are some of the spheres of experience in which the recomposition of the relationships of saying, being and doing take place. The programme of recomposing requires the demarcation and determination of certain questions whose articulation puts into play a legitimate (the only legitimate) strain of controversy: whether an activity is a private or social matter; whether it is a social or a public matter; to what extent one’s antecedents and characteristics bear on his capacity for political functions; to what extent and which inferences as to moral-legal culpability may be drawn from the fact that a person derives his livelihood from labour, financial lending or inheritance; in which circumstances might a citizen’s exercise of his freedom of speech be seen to be contributing or contrary to the welfare of the state, and so on. If the reason for being of classical political philosophy is the conceptualisation of a means of dealing with this wrong, of defusing its inherent capacity for perpetuating and accumulating controversy, Plato and Aristotle each approach the task from idiosyncratic positions. Plato’s

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art is that of abstraction. The political constructs of democracy, oligarchy and autocracy are not true constitutions but only “party ascendancies,” whose purpose in attaining a type of internal hegemony is necessarily thwarted by their state of factionalism and disunity. Plato’s construct, like the forms which ground the objects of reality in a purely ontological fashion, is self-sufficiently unified by reason of the integrity of its organisation. The wrong of democracy is made to disappear with the shoring up of the interior consistency of order of the city. The political parts lose their identity in favour of a schema of functions whose organisation replaces the illogic of the freedom of all with the logic of the function of each. There is no people as such, only those who engage in toil, trade, soldiering, and ultimately guardianship (the educator-ruler). For the artisan or shopkeeper politics is a world away; not because he is deprived of a part by the rule of some other part, but because it is beyond the scope of his function, from which both his life and the good order of the community receive their energy. The freedom of the community is then not some empty property or attribute which membership of the community entails; nor is it the claim of appearance of those who have no virtues, the multitude without a name. Rather, it is inscribed in the very organisation of the people, their transition from mob to providers of human need. It lives to the extent that the order functions properly, that each movement is accounted for, that excess is quashed by a temperament shared across the demos. The calculation of parts is absorbed by a distribution of competencies, each with its laws and teaching, whose project is no less than the harmonisation of the collective such that it constitutes a unity in being. It is paideia that holds the city together, the only currency with universal circulation. To achieve the feat—opening the possibility for the impossible state—Plato must dislodge education from the family hearth and the personal realm of individuated friendships, and make of it a civic duty, belief and fact. Again, we do not confront the dominance of one realm of experience over another, the city triumphing over the family; instead, we see an intensification and interiorisation of disputes codified at the place where the soul and state meet. The individual has within himself a pair of unwise and conflicting counselors whose names are pleasure and pain. In addition there are the anticipations of the future, fear being the expectation of pain and confidence the expectation of pleasure. At the top of all, as some overarching, wise ruler whose attention is fixated upon the effects of disproportion in the gain of one side over another, sits judgment, to discern which the better and worse states are. Law is the name of this judgment when it takes the golden and hallowed form of a public decision

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of a city. It is the oracle to whose wishes one must yield in the orchestra of disputes, contentions and tensions, at the same time barricading armament in resistance to the competing demands. The individual’s duty to understand the true doctrine of these tensions and live in obedience to it implicates the city’s duty to accept the doctrine and translate it into a body of law. Virtue and vice, self-conquest and self-defeat, courage and cowardice, master and slave: can we say that there is the possibility of reconciliation, when each member of the pair peers over to its nemesis in order to understand its own role? In fact, the concord reached through early discipline demands more than simply the power to enjoy rhythm and melody, more than just the skill of singing and dancing, of adequate physical and vocal rendering, more than mere correct execution and apprehension; education creates a subject who correctly or rightly feels pleasure and pain, that is, who is attracted by the good and repelled by its opposite. Similarly, the city’s law does not operate after the fact of a dispute, does not regulate an existing state of affairs, does not preside over a discernible competition; it lives and breeds within the very tensions that seek its counsel, such that the city must feel its natural way towards virtue and away from vice, since they are none other than its pleasure and pain respectively. Education is “this rightly disciplined state of pleasures and pains.”14 With this type of abstraction politics is made to disappear behind its own superficiality. Democracy’s miscount of parts is seen as the arbitrary sheen of a dysfunctional and illogical collective. The wealth of the few and the freedom of the many are not problems in themselves. But in the dispute which is made feasible by democratic aspirations, Plato sees the malady of uncounted and unknown spaces, gaps in the community’s consistency, openings for variables that attack the order of functions like cancerous cells. He sees the ugliness of excess, which tilts the balance of communal spirit beyond a recoverable point, as drunkenness that lays bare a desert of perceptions, memories, beliefs and knowledge. To this the old doctor injects a reversal of regimes. It is not for law, as some exterior programme, to arbitrate the conflicts amongst the parts that make it necessary; it is for paideia to effect the spirit of the law through an internal penetration of the ethical values and sensible perceptions of the body as a unity. The republic is that community in which the law (the nomos) exists as living logos: as the ethos (morality, ways of being, character) of the community and of each of its members; as the occupation of the workers; as the tune playing in everyone’s heads and the movement spontaneously animating their bodies; as the spiritual nourishment (trophê) that

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automatically turns their minds toward a certain cast (tropos) of behaviour and thought.15

Certainly, there is something organic about this invention: substituted for a model of political aims and operations is a vision of a well-tempered community whose organs are kept in harmony by finely tuned souls, souls whose freedom is to move within the flows of the spirit that keeps them alive. Aristotle interjects with the force of a pupil who has discovered the contradictory axiom that will undermine his teacher’s creation, for all its beauty and workmanship: “Is it not obvious that a state may at length attain such a degree of unity as to no longer be a state?”16 Since the state is by its nature a plurality, the immanence of difference interrupts the tendency to unity such that the state breaks up into families and families into individuals, the unit being more unified than the whole. The state contains a multitude of elements: the taxonomy in Book IV distinguishes ten classes, beginning with the food-producing class of farmers and ending with statesmen. Not only may an individual participate in more than one of these functions, but there is also the fragile fact that all claim to possess political abilities and the competency to fill most offices. That which makes unity impossible is at the same time that which makes government necessary. However, Aristotle wants to make clear that the state is not a mere society, having a common locality and established for the prevention of crime and the facilitation of exchange. There are, indeed, many forms of societies and cooperative groups, family connections, brotherhoods, common sacrifices, amusements which draw men together. These conglomerations of friendships, even when tied to a specific common goal such as a space for commerce, have as their ultimate aim the living together in friendship—the condition for the creation of friendship is that each unit of the relationship is separate and otherwise autonomous, each household its own city. Whereas, the union of families and friendships that constitutes political society exists for the sake of a happy, noble and honourable life, attainable with each family’s sacrifice of its own interests for the interests of the polis. Where this definition of political society confronts the fact of immanent difference is the starting point for politics as a philosophical science. In this sense, Aristotle takes to task the very opposition which Plato needs to overcome through abstraction. The different elements of political society are polarised by a deceptive equation: the fundamental division of the state is determined by those qualities which a person may not possess at the same time—poverty and wealth. All actual and potential disputes amongst the classes, the farmers with the traders, the propertied elite with the public servants and

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administrators, the military with the statesmen, and all possible permutations, are made to be played out through the vicarious authority and rules of this primary division. There is only the antagonism of the rich and the poor. Already with Solon, the people become known as the masses through a juridical programme effecting an opening of access to political rule and a solidification of social status. On the one hand, economic position replaces hereditary nobility as the prerequisite for office-holding, thereby releasing the rigid classification of elite rule and abandoning it to the vagrancy of movements in wealth. On the other hand, the abolition of debts and debt-bondage defines both the possibility of birth securing citizen-status and the impossibility of economic disparities being underwritten by the transition from freedom to slavery.17 As Rancière notes, Aristotle’s technique for managing the democratic wrong, far from replacing one order with another, is to make the political order of democracy overlap with the order of police or government.18 The demos becomes a party to a political conflict which is identified with conflict over the occupation of offices, the institutional rendering which is the origin and business of the city. The wrong that gives birth to civic life self-assuredly defines the citizen as the person who governs, who plays his part in the administration of justice and the holding of office. Consider the reforms of Cleisthenes, whose division of the Athenian population is marked with the rigour of a statistician and the order of an urban planner—ten tribes; a Council constituted of fifty members from each tribe; thirty demes (trittyes), ten from the districts about the city, ten from the coast and ten from the interior; three trittyes to each tribe. The political-demographic restructuring he puts into place serves a tripartite course: the redistribution of the population in fresh combinations to ensure a broad economic and geographical cross-section of citizenry in the Council; the tying of local decision-making with state office through the function of the deme assembly; and the reconfiguration of social identity such that citizens are known and relate to one another as members of particular demes in place of the habitual recourse to family identity.19 The problem of government absorbs the incommensurable relation of the parts, hence also the burden of the double paradox. As to the party that is both whole and part, the politics of the police declares that this majority party dominate the functioning of the city, and that it protect its domination as against the permanent threat of the usurped difference of the natural order. As to the claimant of the dispute being the unqualified part whose appearance institutes the dispute, the police order verifies that the ruler is only ever a faction born of a primordial chasm, and that government always runs up against the limits of this division. The tensions

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of government are necessarily those of the city as the manifestation of the political wrong—political science is simply but definitively a matter of managing the wrong.

The Problem of Freedom In analysing the invention of freedom in its embryonic state, we notice that it is burdened with the same insecurity which it is the task of the invention to delimit, albeit at the cost of its own reasoning. How can one be sure of anything in this world of differencesof gods and mortals, rich and poor, free and slaves, nobles and labourers, sages and shopkeeperswhen all persons are considered equal in the community and all participate equally in their own government? By what means might one legitimate the distinction of qualities and capacities and virtues in one’s fellow citizens, facets with no real socio-political implications in radical democracy? We should not, of course, overlook the fact that freedom is primarily a principle of praxis rather than a regulative concept: the freedom of public address in the Assembly, the act of appearing as a speaking body, the subject of a public act, the subject that is the public. The axioms of quality, freedom and consensus exist in a mélange of problematic conjunctions. First, the principle of equality says that all who are free according to the conventions in Attica are equal; but in being equal one is also charged with a new sense of freedom, the freedom to participate in community affairs as an equal being. The principle of freedom that equality rests upon becomes, in an expanded or modified form, the end result of the political dispute to which the doctrine of equality gives life. In this circuitous logic of remedial premises, the original ill which politics deems it necessary to cure fades from the conscious urgency of democratic reform. Second, the freedom to act as a member of the whole owes its enunciation to the teleological operation of the virtue of consensus, a virtue which, at least in its pure state, has no use for a working principle of freedom. Clearly, to understand the pragmatic possibility of this apparent contradiction we must disabuse ourselves of two institutions we hold quite dearly: the interpretation of freedom as liberty derived from a restraint of state interference with the individual’s movements, especially the use and exploitation of one’s body and the exchange of one’s goods; and the importance of majoritarian rule over consensual rule as the organising policy of decision-making in the democratic assembly. Third, the principle of equality presupposes the existence of laws which, if not constituting in a formal sense (as constitutional rules), at least

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aim at managing the workings of this equality. At the same time, the sovereignty of the demos through consensus threatens to undo the rule of law, or rather, the management of equality. It is not so much a matter of the rule of the masses—the popular will—confronting its own constitution, as of an irreducible gap between the visibility of the part that is whole and the rational distribution of bodies and functions which relies upon the normativity of laws. At some point or other, government must suspend its reliance on laws in order to give effect to the uncompromising consequences of the equality of all, even if it runs the risk of voting itself out of existence. Pisander’s oligarchic coup of 411, in which the Athenian Assembly voted to bring an end to the democratic constitution,20 exemplifies radical democracy’s impossible conjunction of equality, consensus and freedom with any policing structure that organises the community along these principles. Having summoned the spectre of ancient democracy, we must at least concern ourselves with the ramifications of this vision for a modern conception that seems much removed: how democracy comes to signify a certain political-philosophical legitimacy of the state form; how rights, metaphysically and inalienably held by individuals, comes to replace the fundamental miscount of parts as the equation of political community; and how the rule of law arrives to legitimate the juridical practices of government—legislative, judicial and institutional—in accordance with a policing paradigm. In many ways, the modern doctrine of human rights, which in turn depends upon a subjective conception of fundamental rights, is an attempt to respond to the problem of realising freedom and equality within a defined, existential space: how is the juridico-political order to reflect the inherent freedom of the individual to participate equally in his sociopolitical environment? Needless to say, it is precisely the assumptions contained in the terms “inherent,” “freedom” and “equality” that are at stake in Greek political thought, at least those aspects that we have analysed. If the Greeks dreamed up different solutions—by which we mean constructive attempts at understanding the problems—than the moderns, it is not purely a function of the unique historical conditions; or rather, understanding those historical conditions and the ideas they both reflected and made possible may provide us with new insights of a different paradigm of thinking about the various modes of expression of individual and collective freedom. This in turn would lead one at the very least to question the necessity and inevitability of recognising inalienable, individual rights in the modern era.

CHAPTER TWO DIVINE RIGHT AND ECCLESIOLOGY

“Il y annonce le règne de la justice.” — Charelmagne

Sovereignty as a Christian Form A history of rights which concerns itself with the organisation of discourses on rights, of the production of truth in relation to the exercise of rights, and of the whole complex of institutions, instruments and regulations making possible the transmission and application of rights in western societies since the early Middle Ages, must confront the equation of rights with sovereign power. It is a matter of not taking sovereignty for granted, not carrying it as an assumption of social reality, not treating it as a fact of life, a thing or entity with a natural or spontaneous form and appearance. Instead, we must chart the specific ways in which sovereignty came to establish a deep alliance with right, the manifold forms of juridical right which sovereign power assumed at different times, and the concentration of juridical relations in the socio-political domain. In short, we should subject sovereignty to an analysis of the extent to which its conditions of possibility are bound up with the truth and apparatuses of rights. In the fore, we may concede that notwithstanding the seemingly permanent relation between sovereignty and rights forged throughout the Middles Ages and carried with consistency into the modern era, rights cannot simply be reduced to the sovereign form of power; they have their own existence and their own vital history. It is precisely in response to this theoretical premise that the multiple relations between sovereignty and rights need to be addressed in terms of their historical contingency. The Medieval investment of sovereign power in juridical right is a polymorphous phenomenon, the earliest strains of which took shape many centuries before the legal renaissance associated with the re-emergence of Roman law. It was never true that sovereignty was a homogenous edifice, a solid monolith encoded with a sense of certainty with respect to its

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identity and function. Sovereignty has always been in construction, like the magnificent cathedrals that testify to the metamorphic capacities of great social structures. At least in a superficial way it is accurate to say that the predominant function of sovereign power in the Middle Ages was to continuously seek and reinforce its own legitimacy. It did this by participating in an obsessive and ultimately vertiginous hunt for origins, for the source or primordial root of its authority, and for the reason for its existence. In this endeavour it had a multitude of tools at hand. The ancients long believed in transcendent norms governing social beings. For example, in the Stoic theory of natural law the immanence of divine reason had the world, all its actors and all their actions underwritten by a rational structure—a correct immutable order—whose laws allocated proper functions. For Cicero natural law was precisely this suggestive equation, right reason in accordance with nature, eternal, unchanging and applicable to all men.1 That the individual was merely one part of a totality of beings and things which made up the cosmos gave force to a natural inclination in him towards the service of the community, the society of men as a whole. In the words of the Stoic Cato, “a kind of civil right mediates between himself and the human race” so that “one who maintains this will be just, and whoever departs from it, unjust.”2 Stoic natural law served as an indisputable model for the Christian conception of ius naturale and ius divinum, even if the cosmology and metaphysics of the Christians broke continuity with Stoic philosophy. These were concepts that were strategically taken up by theologians and jurists throughout the Middle Ages, and especially from the twelfth century on, in their discourses on sovereignty and rights. More important was the fact that Christianity’s theological-political theory, at once both historical and teleological, was given a material and highly structured form as the living Church, an institution which early on developed a preoccupation with the question of sovereignty, whether as an external force or as the manifestation of its own aims and interests. Georges Bataille has said of sovereignty in its general sense, as that which is opposed to the subordinate and the servile, that it belonged to those who were given the names of chieftain, pharaoh, king, king of kings, and to various divinities of which the supreme god was one of the forms, and to the priests who served and incarnated them, and who were sometimes indistinguishable from the kings, and to a whole feudal and priestly hierarchy different only in degree from those who occupied its pinnacle, and further to all men who possess and have never entirely lost the value that is attributed to gods and dignitaries.3 This perspective brings into relief that sovereignty was in its earliest manifestations concerned

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with the sacred, that the sovereign of the pre-Christian world always participated in divinity to some extent, whether in the form of incarnation, descendance, devolution or grace, and that the religious element (commonly represented in the figure of the priest) has always formed part of the sovereign function, whether united in the single person of the sovereign or as a distinct consultative and advisory arm. The sacralisation of sovereignty was certainly not a Christian invention. What has been understood as the sacredness of kingship since the Middle Ages—namely, the sovereign’s adoption of specifically Christian attributes—is merely one relatively late and principally theological construction to emerge from the long history of the meeting and mixing of the pagan and Christian worlds. During Late Antiquity Greco-Roman religion gradually lost contact with its mythological provenance and assumed a new form. This demythologizing process was not an isolated or contained series of events, nor was it coterminous with the conversions to Christianity. In both its pre-Christian and Christian-influenced phases it was bound up with an entire restructuring of the pagan belief system: its cultural status, the objects of knowledge, the role of the worshipping subject, the practices of worship, the nature of divine representations, and the institutional context in which social and political forces manifested themselves through religious events. The mutations in religious attitude and practice associated with imperial Rome around A.D. 100 neither signaled the death of mythology as a tradition of storytelling nor put in question the significance and meanings of relationships with the superhuman. These aspects were left largely untouched, and were heavily borrowed by the emergent cult of Christianity. What did change were the conceptions of the human and divine beings as subjects of knowledge, and the role of this knowledge in the cosmological perception of things. Certainly, there was a greater sense of urgency and immediacy in the relations of humans and gods in the Hellenic and Roman worlds than at earlier periods. There was a greater need to understand the gods one was summoning, to ascribe capacities and functions to them, to delimit their jurisdictions, to interrogate their powers and performances, and to become more personal with them. There was also a greater interest in politicising divine functions and anthropologising their intentions. The cultivation of this new relationship with the gods was facilitated by new forms of contact, no longer only through statuary images and rehearsed rituals but also through oracles, personal presentiments and dreams. The representation of gods as military commanders, prefects or governors around the second and third centuries was an attempt to bring divinity into touch with the material world.4 This religious transformation took place in the context of a heightened and

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introspective interest in the ways and moral consequences of living. As philosophical schools taught and practised a new ethics of individual and social existence, mythology and religious texts were reinterpreted to align more closely with the changed intellectual climate. Christianity’s emergence in the Hellenised world was perhaps made less conflictual by the religious and intellectual transformations that took place from the second century. Changes in the morality of the civic notables and the urban classes occurred before Christian churches were established in the important imperial cities. Attitudes towards marriage, slavery, sexuality and suicide became less matters of civic duty, social status or natural law and more intimate and personal experiences. With their rudimentary ideas on epistemology and ethics neither the early Christians nor their Jewish predecessors cultivated vastly new territory. The popular thesis that a biblical notion of the sacredness and inalienability of individual human life was the basis upon which Christian thinkers formulated a theory of individual or subjective rights in relation to secular authority should be subjected to some scrutiny. It is true that the Old Testament ideas of the human being created by God in his image and joined to him in an overriding covenant established the value of human life in relation to a transcendental law. However, this valorisation largely depended on the tie of solidarity: it was in the context of the community that the individual reassured himself of the special bond to Yahweh, for God had made a covenant with the Jewish people as a whole. In later Judaism the quest for solidarity, for the single-heartedness of person and community, also animated the thinking of small divergent sects such as the society of Jesus. Moral anxieties with respect to the survival of the Jewish community placed emphasis on the heart “as a core of motivation, reflection, and imagined intentions, that should ideally be single, simple— translucent to the demands of God and its neighbours.”5 Only if the individual heart was open to the sight of God and one’s fellows could the community hope to achieve the natural state whose return was imminent in the Last Judgment. The texts of the Christians did not necessarily break away from this focus on the relation of person to group in terms of an ideal and cohesive religious identity, even if there was a growing sense of the need to investigate one’s inner self in order to weed out elements of secrecy, tension and private transgressions. Pauline doctrine did place emphasis on the individual soul or spirit as a self-contained and inalienable entity. First, the apostle Paul spoke of Jesus having eradicated traditional distinctions— Jew and gentile, slave and freeman, Greek and barbarian, male and female—and dressing all persons in the one Christian cloak.6 In place of

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the superficial garments humans had been vested with, it was the common factor of humanity which entitled individuals to citizenship of this undifferentiated community. Second, Paul’s strict division of human nature in terms of the flesh and the spirit was the catalyst for a series of interpretive readings of the New Testament in which ideas about sin, sexuality and the failings of the body, as well as the soul as the seat of moral activity, were given life as fundamental precepts of Christian doctrine. At the same time, it must be borne in mind that this creative consolidation of Jesus’ teachings was part of a particular missionary design, not an attempt to provide the groundwork for a theoretical system of Christian knowledge on human nature. The preparation of a persuasive moral package with which to convert the heterogenous, polytheistic population played on preoccupations, insecurities and tensions that already existed in Greco-Roman society. The care for the self, which assumed primary importance in the pagan culture of Late Antiquity, took the form of a more vigilant and social experience as the care for the soul in Christian ethics. Preoccupations with respect to material living conditions—disparities in wealth, status, class and race—and the growing sense of smallness and insignificance in relation to a society that was expanding beyond the conventional boundaries of custom and identity, provided an environment of openness towards new religions and styles of living. In this context, both the retreat into the privacy of the soul and the solidarity of a tight-knit, morally-disciplined and egalitarian community were desirable developments of existing Jewish and pagan ideas and practices. Paul’s statement that “Every person must submit to the authorities in power, for all authority comes from God, and the existing authorities are instituted by him”7 certainly provided biblical support for a theory on the role of political sovereignty in the Christian world, one that theologians enthusiastically espoused at least until Augustine’s City of God. However, such a statement would in itself have been inconsequential were it not for the fact that the Roman empire suggested itself even to pagan followers in the period of the late empire as a model for the divine order. It was a time in which relations between gods and men resembled that of a monarch and his subjects. This monarch was either a single, providential god or a collection of largely indistinguishable and interchangeable gods fulfilling the same function, namely, to govern, counsel and protect humans from the unpredictable dictates of fortune.8 There was a succession of emperors up to and including Constantine who not only sought to subordinate all deities to one overarching god—Sol, the sun god, was the eastern and Greco-Roman deity most commonly worshipped in a monotheistic way—

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but also promoted a personal equation with that god.9 Christianity’s innovation was to take both tendencies, that of religious monotheism and the sacralisation of political power, to their logical or at least feasible conclusion. By the fifth century the political certainty of empire, whether real or imagined, began to give way to the establishment of new socio-political entities that no longer had the res publica as their reason for being. Political theory was injected with a new set of values, worked out by Christian writers in that fecund period of theological exposition between the third and sixth centuries. More importantly, it was the period in which the Christian Church evolved from a demographically marginal religious community to a ubiquitous and permanent political and legal institution. This evolution took place amongst a number of critical transitions and transformations for the Church: the sack of Rome, not merely the Church’s spiritual centre but the symbolic origin and moving principle for the imperial Christian dream; the schismatic division of the Christian west, between orthodoxy and Arianism; the Church’s transformation from a fundamentally urban institution to one with country-wide representation, together with its hermetic and monastic movements, paralleling the general ruralisation of western societies; and the emergence of a multitude of diverse kingdoms headed by monarchs and their elites, centres of power where local customs, private fiscal relations and indigenous legal systems determined the government of the territories in place of uniform imperial policies and laws. The Christological model of kingship was merely one aspect, iconographically powerful though it was, of the rather complex and variable relationships between representatives of the Church and monarchs during this time of royal consolidation and ecclesiastical growth. Yet, across such diverse cultures and landscapes there was also a remarkable element of consistency to these relationships. The function of political power within a Christian worldview became a problematic issue for the post-imperial Church, and the Church subsequently lent its concerns and ideas to the new monarchs who found it difficult to rule without the support of the priesthood. These issues are found amongst the writings of Medieval theologians, and within the decrees and royal legislation of the period between the sixth and tenth centuries. Our focus on the juridification of sovereignty, then, must be understood not only in terms of the political-juridical theology of the royal head, but also of the special and quite particular relations between the king and the clergy, which were as much a part of sovereign power as the exercise of royal justice, the royal treasury and the dispensation of privileges, and indispensable to all

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of these. We are touching here upon a convoluted history of, on the one hand, the theological rationalisation of political sovereignty, and on the other, the juridification of the institution of the Church and its function in the government of human bodies. These historical processes trace for us the emergence of a mode of governance through which both the Church and state, both harmoniously and in contest, exercised power as a means to extract obedience, services, taxes and blood from the faithful. At the same time, they allow us to comprehend how the mechanisms used to construct the symbolic artifice of rulership by divine right later came to be among the tools the Medieval jurists used to temper the real and ideological excesses of sovereignty, and thus frame a new set of relations, principally juridical in form, between the prince and his subjects.

The Pastoral Mode of Power Leaving aside that Christianity, almost from its inception, developed a distinctly political mode of expression, it was in the fourth and fifth centuries that Christian representatives fashioned new symbols of authority and engaged the existing governing structure in new sociopolitical exigencies and dependencies. The traditional political order was subject to an internal investigation in which both the way it functioned and the justification for its functioning were at issue. The validation of its authority depended upon the extent to which it was conceived as a temporal reflection of the divine order, with its ruling players on duty for Christ. “An emperor, hailed by Ambrose as militans pro Deo, on active service for the Christian God, was linked to his upper-class subjects, and, through these, to all inhabitants of the empire.”10 It was a dual programme: the emperor was sacralized in Christian terms whilst the Church which promoted this sacralization of the imperial office became indispensable to the administration and rule of the recently Christianised empire. Where Rome’s poytheist universalism, promoted by both Aurelian and Julian in their own ways, depended largely upon a sacred centre and a certain cultural uniformity to unite racially and geographically dispersed peoples, the Christiano-Roman empire remodelled its very ontological and historical existence for the sake of an expansionist and proselytizing vision of universalism. Eusebius’ Vita Constantini situates the life of Constantine within a new Christian narrative in which the history of the Church and that of empire, and their respective teleologies, are definitively conjoined. Just as Jesus was born in the reign of Augustus, the one who installed the pax Romana, forming a single empire from a multitude of kingdoms, Constantine was a central figure in the development of the historical

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marriage of empire and Church.11 As well as sacral king he was also bishop. Summoning and presiding as princeps over the Council of Nicaea in 325 Constantine sought not only to achieve uniformity in Christian doctrine, but on a grander scale to provide spiritual guidance as a critical new element of his imperial duty to his subjects. At a time and in an environment in which pagan polytheism, classical pantheism and gnosticism posed rival theories that were well embedded in Late Antique consciousness, the Greek apologists’ use of the term “monarchy” to support a strict monotheism and the doctrine of divine transcendence and omnipotence12 served a twofold purpose. First, by adopting the Hellenistic theory of kingship—the singular temporal rule of the basileus in mimicry of the kingship of Zeus, the monarch as a god among men—Christian theologians established an ancient precedent for their monotheistic principles. Second, whilst at the same time moving away from the notion of divine descendance, the theologians instituted political authority as a subject for theological discourse. In place of the idea of the temporal monarch possessing divine attributes, or ruling with a direct, unmediated mandate from heaven—ideas which, in any case, by the fifth century were already being diluted and reinterpreted by the Church—Christian writers represented imperial or monarchical power in terms of ecclesiastical history and doctrine. It was not until the high Middles Ages that the dispute between imperium and sacredotium as to competencies and jurisdiction was officially played out, and then theological and jurisprudential treatises began to devote precious pages to the stakes involved in the dispute. At the time of the Latin fathers a different type of tension preoccupied the intelligentsia. The growing sense of political purpose on the part of Christian representatives, to a claim on the government of bodies as well as souls, necessitated the development of an appropriate discourse to serve as instrument for the Church’s material intervention in the public arena of politics. In the writings of Christians the civic bonds that had for centuries been the primary source of social cohesion in the Greek and Roman civilisations began to recede into an ahistorical backdrop. It was not that the conventional notion of the citizen-body disappeared, but it began to lose its overriding relevance in the face of the new relations established by the Christian Church. The providential view of imperial-monarchical government, which the early popes—from Innocent I to Gelasius I— promulgated in the idea of a Roman principatus, was confronted with the growth and importance of a clerical class, effectively of governors and administrators as well as spiritual figures. In one sense, the Theodosian establishment and enforcement of Christianity as the official religion was

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the high water mark of a prophetic view of the empire’s role in the divine plan. At the same time, it provoked a reflective mood on the part of Christian theoreticians. The challenge to imperial Christianity’s cohort of secular and religious authority posed by the schismatic Donatists forced Augustine to contemplate an abstract system of division transcending the old opposition of spiritual and profane worlds.13 In this more finely-tuned and variable arrangement of forces—the two “loves,” one holy the other sinful, both extant in persons and social organs in different mixtures and concentrations—ideas about the divinely-ordained function of the monarch to administer the “laws of heavenly justice” and of the clergy to perform prayer and the sacraments became less clear. It is true to say that beyond infiltrating the tight-knit imperial model of political power Christianity introduced new concerns and presented new problems in relation to rulership, concerns and problems which previously did not figure in the scheme of imperial politics, and in fact, had not been considered political issues at all. The new concerns and problems were bound up with the question of the type of life one should lead so as to ensure salvation beyond this life. They brought into play ensembles of knowledge on the individual as well as the Christian population as a whole. They encompassed issues of religious worship, poverty, demography, mercy and clemency in judicial matters, protection of minority groups, relations between Christians and pagans, religious conversions and the relationship between Christian leaders and their followers. They opened up the question of good government—the just method of governing—to issues of responsibility and guidance. By the fifth century the image of the shepherd reflected each of bishop, king and priest. We should not assume from this that the different offices were homogenised; far from it, there was always an acute recognition that each office was distinct and performed its own social role. However, as Christian representatives gained access to the imperial political system, the actual scope of political authority, including that of the emperor’s office itself, was expanded to include the hitherto private affairs of the people: religion, morality, health and economic prosperity. What made this political transformation possible was that the new pastoral role emerged as something of a natural consequence of Christian doctrine and ethics. Michel Foucault has already shown the extent to which early Christianity was organised along an epistemological axis.14 Obligations of truth, dogma and canon were imposed by a religious group which could boast a distinct socio-political form and organised heirarchy in the nature of a church. “The duty to accept a set of obligations, to hold certain books as permanent truth, to accept authoritarian decisions in

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matters of truth, not only to believe certain things but to show that one believes, and to accept institutional authority”15 were the conditions for membership of this organisation. Moreover, salvation entailed the induction of a specific subjective state or experience, one that responded to the obligation of faith as a member of the Christian community, but also one that would make possible the extraction of knowledge of the self—the truth of oneself as a condition for purification of the soul. The intensive, self-policing and self-renunciative form of obedience inspired by the will to truth was reflected in the pastor’s concern and care for the individual life of each person. The antinomy of self and community was dispelled since each individual was accorded the same value as the whole. Moreover, the shepherd is a nomad: his work lies with neither territory nor race, but with a multitude moving towards the one goal. The pastor’s power was “coextensive and continuous with life”: it explored the individual’s soul, opened it up to reveal its silent workings and rendered it vulnerable to its own dark crevices; at the same time, it promised redemption, a relationship to truth, a vigorous and unrelenting control over the conscience. The pastoral mode of government was perpetual, in the sense of a continuous and active watch and concern for the flock. The individual thus took upon himself a double dependency, a double form of subjectivation: subject to the pastor’s knowledge and codes of behaviour in the act of obedience and the recognition of and submission to authority; and, subject to his own conscience, a dependency rendered positive in the form of a process of liberation of the individual from the turmoil and ignorance of his unfettered and sinful instincts. In order to map out the operation of this double dependency or double subjectivation we will need to consider, if only schematically, a number of themes characteristic of the early Christian Church, themes through which the Church defined itself, rationalised its spiritual authority and legitimised its pastoral function.

Epistemological synthesis There was a distinct synthetic quality to the Church’s mentality and intellect. The extensive borrowing from pagan Greek philosophy, both on the Eastern and Western fronts, did not dissuade the Church from believing that its mission was to perform an epistemological revolution, to correct the errors of learning which had accumulated in the prehistoric shadows of the Christian logos. Its theological pathology was to sweep up the scattered and misused pieces of truth, to bring together the individuated cells of knowledge and place them upon a plane or surface of

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consistency and purpose. For example, the Classical significance of moderation in human temperament could be compared to Christ’s teaching not because Christianity shared precisely the list and meaning of Greek virtues (arete), but because nature dictated a certain accessible morality that could not be taught. In this sense, the concept of nature in Christian thinking asserted itself over the function of education (paideia) which the Greeks ascribed to the process of knowing oneself and the universe, even if paideia as an imperial institution remained a critical transitional element linking the pagan and Christian societies. Polytheistic culture had kept apart philosophy, morality and religion: an unnatural separation which had steered these people away from the one divine source of truth. The process of aggregation was to make philosophical matters dependent upon the doctrine of revelation, and morality the nucleus of Christian faith and economy. One can trace from the fourth century onwards the declining relative importance of the liturgy and the sacraments as the focal practice of the Church in favour of the formulation of doctrine, of philosophical reflection and the creation of new conceptual apparatuses.16 The homogenising function of Christian doctrine, by bringing together separate spheres of thought and ways of living—the life of the philosopher and the quest for moral purity were to take shape in each individual through a universal Christian perspective—facilitated an intrusive, deeply penetrative and indispensable relationship between the Church and human life as a whole.

The community of sin Christian doctrine instituted a cosmology of its own: the permanent weight of sin, and not the ordered movements of the laws of nature, was the universal constant. Individuals from diverse races, social classes and levels of culture were united in a communion of sinners. Augustine’s City of God incites the imagination to conceive of the inconceivable: the distance between the terrestrial city, soaked with sin, and the heavenly city, sparkling in golden wash like the original city of Jerusalem. But the city of God is also a city with gates, impartial and open to an infinite potential citizenry. Even if at the heart of this idea is an irreparable caesura between heaven and earth—whereas paganism conceived of a merely challenging though navigable passage between the two states—it is the openness and accessibility, the existential reformulation at the level of everyday life, this common and definitive ground to human nature, which rendered the imagery and significance of the “two cities” so durable. The communality of sin was represented in the institution of the Church, not

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just as a philosophical school or moral tutor but as a living entity into which every Christian breathed new life and infused new strength. In the very act of gathering in churches and participating in prayer the community made reparation for the sins of each member. At the same time as opening up the possibility of new ways of living and new forms of social organisation the Christian conception of human nature circumscribed the means of actualising this possibility. For Augustine the universality of sin rendered all persons eligible for a sprinkling of grace. This was to be achieved not only through the self-transformative acts of rebirth—conversion and the rite of baptism—but also through a regulated life-long struggle to follow the commands of God. In effect, this open eligibility came at a price; the hierarchical premises of spirituality could not be denied: those with a deeper love of God, those closer to the truth, were elected to receive grace above others. The Christian community was a community with leaders. All Christians had a glimpse of the treacherous road to the heavenly city, but without a guide the path would remain illusory.

The personal relation of pastor and penitent Beyond unifying the Christian community the attribution of sin also had an intimate aspect. Remembering that confession was both a public and private affair, it was in the act of verbalising one’s thoughts that the hermeneutical interrogation of one’s inner self and the external disclosure of truth were joined in a ritual of self-renunciation and sacrifice. At the same time, the performance witnessed the obedience of the sinner in permitting the master not only to know his thoughts but also to discriminate good and evil thoughts through the process of enunciation. Confession entailed the cultivation of a quite specific relationship in which the penitent was to be lead to repentance through the status and techniques of the pastor. The pastor assumed a role as God’s representative, though not in any general or arbitrary way. It was specifically God’s judicial nature which the pastor had to replicate temporally: the capacity to declare the law, to examine the penitent, to judge upon the penitent and to prescribe the particular and individualised means for the remission of sins. The transmission of the judgment and mercy of God through the figure of the bishop in the ritual of confession reified what was in essence an ambiguous relation of dependency. In a highly stratified Christian community that had come to distinguish itself by an egalitarian mission and worship of a personal and omnipresent deity, this mediation by the

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bishop in the personification of divine justice nonetheless heightened the private and intimate relationship between the individual and God.

Sexual austerity The moralisation of sexual practices, the codes of sexual behaviour, the premium on celibacy, the renunciation of marriage, the ideal of the single heart—all in all, concerns with respect to sexuality achieved an exalted importance and relevance to the way in which the individual saw himself, nourished his identity and practised a Christian style of life. The progressive elaboration of an ethical doctrine linking original sin with sexual activity—the “sins of the flesh”—through Clement of Alexandria, Tertullian, Cyprian and Augustine,17 transformed what was originally a highly symbolic mode of differentiation, a public cloak which served to separate believers from non-Christians, much as pagan philosophers were publicly identifiable by their austere clothing and appearance. Sexual austerity became a moral imperative. An entire series of rules and prohibitions in relation to concupiscence, fornication, sodomy, masturbation, involuntary erections and ejaculations, and desire itself, was prescribed in treatises. In addition to the special relationship of the individual with his soul, and precisely for its sake, the individual was required to establish an equally if not more highly circumscribed relationship with his body, a relationship based upon awareness of sexual appetite, vigilance with respect to all of its patent and surreptitious manifestations, and discipline in the quest for sexual purity. The phenomena of mass feminine virginity, the hermetical flights into the desert and eventually the more institutional monastic movements represent extreme and imaginatively charged experiences of this sexual form of subjectivity which dominated the aesthetics of Christian life.

Bishop as representative of the people of God This was a theme that would fully mature in the feudal age when the ecclesiastical machine would assert its direct divinely-appointed superiority. But even in the imperial cities of the fourth century bishops manufactured a certain image of popular mandate and representativeness by means of a number of related strategies that put into effect a new method and style of urban leadership.18 First, bishops claimed as their Christian duty to speak and act for the entire populations of the cities. As the upper classes of Roman society were gradually Christianised the notables, governors and imperial court collaborated with bishops and their

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clergy, especially since the Church assumed this monumental responsibility in times of crisis. The deference and reverence towards bishops can be seen as a direct result of the organisation of the Christian Church as a community of the faithful. The Church, with its basilicas, symbolic rites and regular gatherings had a direct impact on more people’s lives than the occasional public show of imperial grandeur. This influence enabled bishops to mobilise large congregations, engage them in processions, even provoke major riots, and commit with impunity acts of violence against pagan temples and objects of worship. Second, bishops presented themselves as the public face of the new morality. Whilst Greco-Roman philosophers had already established a discourse in analysing and critiquing the actions of rulers—and in the case of Marcus Aurelius this took the powerful form of self-critique—the bishops expanded the relevance and implications of such critique. It was not just a matter of introducing concerns about one’s behaviour, comportment and way of living in the reflection of one’s capacity with respect to public duties; that is, propounding what we might call private duties and bringing these to bear in the political sphere. The Christian philosopher effectively reversed the onus of proof: instead of the question, what type of master of others would one make if he were not a master of himself, the question became, how could a ruler, stripped of his robes and reduced to a servant of God, be at peace with his soul where his public conduct and treatment of others fell short of the moral requirements of the Christian faith? The bishop Ambrose’s censure of Theodosius for ordering the massacre of seven thousand inhabitants of Thessalonica in 390 and the prescription of penance for this grave sin against the people of God exemplify the socio-political reach of the Church’s assumed authority in moral matters. “The bishop had established himself as the critic of imperial rage and, consequently, as the arbiter of imperial mercy.”19 Third, it was the issue of poverty, in an environment of great class and economic polarity as existed in the late empire, which sealed the Church’s authority as carer and protector of the people. Just as the communion of sinners knew no racial, cultural or class barriers, so too the community of the needy. At the heart of the city as well as at the far fringes of the country stood an anonymous majority, the poor and the afflicted. The representation of this majority that at the same time symbolised marginality in society, stood the Church on high ground to claim representation for the people as a whole. Whilst the care of the poor no doubt took many and diverse forms it was consolidated as an integral part of the Church’s communal activities through the Church’s ability to mobilise wealth. Almsgiving was promoted as an important mode of

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penance, an act of Christian piety open to all, since wealth and sin were seen as part of the same superficial condition of earthly existence. Through the activities of the Church the poor were turned into a highly visible mark of society’s illness; at the same time these activities affirmed that the cure lay in the hands and souls of each individual. Fourth, at least in the cities the bishops assumed and were entrusted with certain responsibilities for law and order. They were expected to control the behaviour of crowds and prevent riots. Their care for the lower classes also entailed the obligation to supervise them and restrict their movements. There is evidence in some Roman cities of bishops keeping poor rolls, an attempt to keep the poor in one place. The bishop’s court of arbitration, the episcopalis audientia, which Constantine himself recognised, served to intensify the Church’s temporal presence in the everyday lives of the people, including the notable and wealthy, even if the substance and procedure were dominated by secular Roman law. With the authority to settle private disputes bishops could take action against the provincial governors and appeal directly to the emperor if the governors resisted their conciliatory interference. Here began the long involvement of ecclesiastics in judicial and legislative affairs, drafting canonical rules within synods, acting as magistrates and judicial officers in dispute settlement. It was to complete the splendent image of the representation of the people of God: moral guidance, welfare and justice. As the Roman aristocracy and Christian luminaries of the late fifth and sixth centuries watched their universe dislocate, churches multiplied in the urban regions and the countryside. In Gaul, in particular, bishops, who often derived from landed and wealthy families, commenced a frantic building project. They had become important figures in the new Frankish lands, leaders who fed the masses and kept the peace. Within their majestic basilicas large congregations experienced the ceremonial opulence of a church whose centre of gravity was replaced with multiple, dispersed points of stability. Charity, the administration of almsgiving, even the ransoming of peasants, were the main instruments of the Church’s provision of welfare and the maintenance of social order. From the sixth century onwards the representation of the Catholic bishop as a father of his city had great currency—it became a point of reference for the pastoral form of government, whether of the bishop with respect to his city, the abbot his monastery or the king his realm. Gregory the Great may be situated at the culmination of this movement, less for the fact that he governed a centralised church which itself began to experience the effects of dispersion in the void left by a

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distanced east Roman empire and the advent of Lombardian society, than for his concentrated interest in the principles and rules under which pastoralism was to become an ideal form or model of power, applicable to all institutions of authority. Gregory lived out the tension between the active and contemplative life: from prefect of Rome to monk, deacon to pope. Within this tension he elaborated a conception of authority marked by its starkness and singleness of purpose: the government of souls, the care for the salvation of all believers, was the sole function of all power. We must remember that Gregory lived in an age in which the clergy’s relations with the civil administration of the empire was a day to day affair, and the Church exercised a significant share of public authority. No longer merely a theological thesis, the marriage of Church and empire had become a material fact. Under this assumption it was a natural progression of thought to invest laypersons with the same vocation as bishops and monks, the “physicians of the soul.” However, two phenomena were decisive in the formulation of the ideas contained in Regula Pastoralis. One concerned the emergent Christological doctrine, which placed a new emphasis on the incarnation of God as a breach of the chasm that had existed between the divine and terrestrial realms. The Greek theologians very early on had shown interest in the human nature of the Christian logos. Gregory of Nazianzus recognised that the birth of Jesus Christ was not merely a unidirectional act of incarnation, it was the establishment of an irrevocable and unprecedented link with humanity: He communicates a second fellowship [with God] far more marvelous than the first had been. For then he imparted the better nature [to humanity], whereas this time he himself participates in the worse nature [of humanity].20

In the east the Monophysite-Nestorian disputes lead to the Councils of Ephesus and Chalcedon. In the west the resolution of the question as to the single or divided natures of Christ took a less theoretical path. With the disintegration of a pagan culture that had maintained strong ties with the natural environment, an environment which continued to dominate the survival, well-being and prosperity of the population, Christians who were asked to give up this time-honoured, direct relationship with the natural and supernatural worlds sought the security and protection of a god that lived and suffered their problems with them. The idea that the one, omnipotent, all-knowing and distant Being had chosen, like a true and loving father, to come down and present himself in an immediate way to his people so as to share their afflictions, suffering and death, touched the sensibilities of Christians in a way that earlier doctrine had failed to do.

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This paternalistic theme could not but affect the perception of the authority of the emperor; the sovereign could no longer sit enthroned in the lofty heights of sacredness and privilege without involving himself in the cares of ordinary life. The other phenomenon was the monastic movement, which by the sixth century had attained an institutional stature. It is important to recognise that monasticism’s claim to embody a life of solitude, contemplation, asylum and mysticism served first and foremost as a persuasive ideology promoting, for the most part, less a flight from society than new forms of communal living. At least in the west, the geographical and social situation of the so-called desert refuges suggests that monastic communities were often operated as microcities, with monks looking to late antique cities as their models.21 Gregory had served as an abbot and was conversant with the Regula of Benedict of Nursia. These rules, as with so many others in circulation, were instructions to abbots, codes of behaviour for monks, norms of discipline and social intercourse for all its members. Expressed in appropriately minimalistic and simplistic fashion, the emphasis lay in clarity, conciseness and incisiveness, defying discussion or controversy. The living quarters of monasteries varied according to the size and order of such institutions. However, they tended to replicate intimate spaces, small cells in which individual monks were exposed to the perpetual presence of the others as well as their constant watch. The abbot’s task was to govern their lives with the same skill and intensity as God the father exercised his immanent care for the entire flock. He was to be strict, at times soft and merciful, persuasive, and capable of controlling and manipulating the manifold temperaments of the diverse personalities. Gregory used the term rector to signify the bearer of authority. It was used as the official title of the Church’s agents in charge of its estates, and he used it to describe the sacerdotal office in his ecclesiastical handbook, De officiis ministrorum.22 But it also served a more general, linguistic purpose. By adopting language burdened with the usage and significance of secular government Gregory managed to speak self-assuredly of a singular, indivisible form of power that, on the one hand, was eminently hierarchical in structure, and on the other, had as its objective a mission of service towards the governed to be exercised with responsibility and humility. This sweeping analysis of the pastoral function as it emerged in late antique Christianity provides a general historical framework within which to understand the emergence of a particular type of sovereign power in the early Middle Ages. This is not to suggest that sovereignty took precisely the form of a relationship between the pastor and his flock. In many ways

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and for complex reasons pastoral power as it was formulated by Gregory did not dominate the Medieval landscape outside the organisation of the Church, the abbey and the monastery. The most important of these reasons for our purposes is the birth of feudal relations, an area we shall consider in some depth later. However, certain characteristics of Christian pastoralism survived, at least in mutated forms, in the political entities that took shape in western Europe between the sixth and tenth centuries. In a general sense, there was an intensification of the use of Christian symbols and imagery in relation to the origin, purpose and modes of governance. There was a heightened interest in the nature of the relationship between the sovereign and his subjects, of the responsibility of one and the obedience of the other. The role of the Church in secular government took on a new significance, one that could no longer be assumed or dealt with solely in theological argument but instead had to be reified in a specific and systematic juridical form. It was a time in which Germanic kings, more so than their Roman predecessors, sought a transcendent source, an unequivocal foundation in divinity, to legitimate their political authority. Nor were these dark times for monarchs upon whom shone the luminous sun of ecclesiastical patronage. And in the consolidation of the institutions of royal government emerged an ever deepening dependence upon the Church, its ethical norms and its laws. It is to these historical processes that we now turn.

The Christian King-Judge The connection of kingship with the Christian conception of the sacred, and more specifically with that of sacerdotal authority, was decisive for the emergence of kingdoms characterised by distinct monarchical governments and institutionalised legal systems. In the first place, Germanic peoples were essentially unfamiliar with monarchy prior to the new kingdoms. The Latin title rex (hence, the Germanic reiks) was not appropriated by Germanic sovereigns but instead attributed to the leaders of the barbarian kingdoms by the Romans. That the Germanic notions of kingship varied significantly with those of Greco-Roman origin is attested to etymologically. The Old English term for “king,” cyning, derives from the root kun, namely kin or family. The king was therefore the one who most represented the kinship of a tribe, who embodied the very identity of the kin, and whose possession of heil (whence “health” and “healing”) guaranteed the welfare of the clan. The cyning denoted membership of the stirps, the ruling family. This semantic sense of familial identity and continuity, a sort of privileged kinship within the

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tribe’s kinship, was the basis for the selection and nomination of leaders, since the special attributes of healthy constitutions, longevity and curative powers were considered to be hereditary.23 The custom of selecting leaders from a particular family believed to possess nobility, namely particular virtues granted divine sanction and thus bestowing royal legitimacy— Anglo-Saxon kings often traced their descent from the god Woden—was practiced in varying degrees by Goths, Franks and Anglo-Saxons right up until the ninth century. In the second place, the priestly function of pagan kingship bears only superficial resemblance to sacerdotal kingship. The Germanic migrations saw a gradual shift of emphasis in the nature of kingship: the thiudans, the sacred, priestly leaders who ruled with the solemnity and persuasiveness of speech at tribal assemblies, were gradually displaced by the rieks, predominantly military commanders and governors whose territorial successes rather than origins evidenced their royal qualities. In any case, the religious functions performed by the head of the Germanic stirps were in the context of the special relationship between the individual leader and the gods, in which he served as a mediator by virtue of his innate, divine-like characteristics; there was no equivalent of a priestly order through which the sovereign derived his sacred personality. The early European kingdoms developed monarchical constitutions in the shadows and on the model of the late empire. The Christian exhortation of monarchy, from the church fathers through to Isidore of Seville in the sixth century, perpetuated and exalted the sacredness of kingship in a way that was to hold influence into the high Middles Ages. Eusebius early on stressed the double significance of this sacred character: first, that monarchy is the constitution which resembles divine government; second, that the authority of the king is bestowed directly by God: surely monarchy far transcends every other constitution and form of government…Hence there is one God, and not two, or three, or more: for to assert a plurality of gods is plainly to deny the being of God at all. There is “one King”; and his Word and royal Law is one.24

Anglo-Saxon royalty, in particular, was represented in terms of the Christian mission and pastoral duties: the king as the good shepherd, pastor of his flock, Christ’s vice-regent, ruling and dividing kingdoms through Christ and on the favour of God, Christus Domini. The notion of the king-judge, by which the sovereign was not merely to function under the guidance of justice but represented and was curator of living justice, followed directly from the hieratic and pastoral features of the Christian

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ruler. There was no shortage of writers, including Augustine, Isidore and Jonas of Orleans, who promoted a linguistic association between the king and justice, for example, deriving rex from recte, to act rightly or righteously. Moreover, the frequent use of Old Testament examples and parallels, especially on the part of the Carolingians, carried with it a firm connotation of royal government existing within a prism of paternalism and justice: the divine right of the Judaic kings, far from being absolute, had always been interpreted in the context of the special responsibilities of trust derived from the covenant between God and the Hebrew people. Isidore’s views on the Christian king’s duty of service emphasised, beyond the maintenance of peace, the observance and promotion of ecclesiastical discipline, the practice of righteousness and “right living,” and the exercise of justice and mercy.25 Certainly, these views were reflective of the peculiar reality of the Visigothic king of Toulouse: head of a migratory army, ruling over a divided population and governing territory entrenched with imperial administration, the king assumed, in addition to the traditional responsibilities as commander-in-chief of his tribe’s military forces and head of the Arian tribal church, the adopted duties as head of the Catholic Church of his Roman subjects, judge and ultimate legislative authority, foreign policy maker, patrimonial official of high-level Roman bureaucracy and supervisor of the domestic administration of the realm.26 In the making of this new monarch it was the Church which concerned itself with working out the precise function, and with it the limitations, of the sacred office. Already with the Council of Nicaea the Church acknowledged that the office of the priesthood had to be exercised “secundum legis et aequitatis praecepta”.27 Similarly, sovereign power, which had long been associated with the exercise of justice, came to be circumscribed by the concept of aequitas (equanimity, equity, fairness) through the almost impercetible merging of iustitia and aequitas in clerical writing, such as occurs in Hincmar’s De ordine palatii. The Church’s promotion of the king as its protector and defender (defensor Ecclesiae was a title with great currency throughout the Middle Ages) supported various practices of royal arrogation of ecclesiastical jurisdiction. The king’s convening and setting of the agendas of ecclesiastical synods and councils could be traced back to Constantine and continued at least until the ninth century. Charlemagne personally presided over the Council of Frankfurt in 794, a principally theological convention concerned with the practices of iconolatory. The Visigoths established the Councils of Toledo, which the kings presided over, as combined political and legislative forums for both the secular and religious government and administration

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of the kingdom. It was through these councils that Isidore’s ideas on the office of kingship as a ministerium of the Church, to be exercised with iustitia, pietas and the commune consilium of lay and spiritual authorities,28 were reified as institutional rules. With the early Franks, after conversion, bishops sought royal sanction of their conciliar decisions by submitting their deliberations for the king’s approval and dissemination. Merovingian kings later set up ecclesiastical courts ad hoc at the request of local councils to deal with clerical discipline, charges and disputes.29 In a general sense we might consider the connection of the metaphors rex imago Christi and rex imago aequitatis as the symbolic foundation for the Christian ruler’s embodiment of juridical power, even in the rather crude and ambiguous form that it took in the early Middle Ages. It may be more accurate to say that the liturgical concept of Christ-centred kingship lent itself to this justicial association, naturally with the assistance of biblical imagery and the theocentricism of late imperial Rome, as a consequence of the conditions in which the early European monarchs found themselves. Whilst one cannot speak of a centralised judicial apparatus at this point, the very fact that justice and the concomitant panoply of rights were seen to flow from divine right, and that this right was temporally vested in the king alone, lead to the concentration of ultimate judicial authority in sovereign prerogative. The king by and large retained this prerogative in one form or another into the modern age of territorial states, even if instances of the king assuming the personal duty of giving judgment were limited to rare cases such as treason. Examples of the prerogative functions are the right to review sentences passed by judges, the right to judge upon petition or reclamatio, jurisdiction over cases for which no legal rule existed, and the removing of certain matters or categories of persons from ordinary jurisdiction to that of the king or his delegates.30 It was in the reign of Charlemagne that the infrastructure of Frankish legal institutions was consolidated in accordance with the special judicial prerogative of the Carolingian monarch. The competence of the palace court, whose jurisdiction had been provided for in the national laws such as the Salic and Ripuarian laws, was extended in significant ways. First, individual and ecclesiastical bodies granted privileges of protection by the king, namely churches, widows and orphans, had the right to have their cases heard before the palace court. Second, a number of official decrees in the form of written capitularies assigned certain cases to the jurisdiction of the palace court: cases involving monks, priests and ecclesiastics, including failure to observe the Benedectine Rules, sodomy and the keeping of concubines; cases concerning those who harmed persons who

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had given information in support of the rights of the emperor; cases concerning those who refused to pay a composition for acts of homicide, or to submit to the judgment of a bishop and a secular court after committing homicide against relatives, or to submit to the judgment of a bishop where guilty of incest or illicit union; cases of perjury and refusal of military services; cases in which men of high social rank caused trouble in a county, or in which individuals in a band resisted a count when he entered lands of immunity in conformance with law.31 This competence could be exercised by the king himself or, more commonly, the counts palatine. Apart from the palace court Charlemagne delegated judicial authority to other royal institutions, the most important being the mallus and the assizes of the missi dominici. The mallus was essentially the county court which sat in the pagus, the village or district, as determined by custom. It was presided over by the count or his assistant, aided by permanent and qualified judgment-finders known as scabini whose task was to advise on the relevant law and seek judgment. Additionally, it required that the free men of the pagus where the mallus sat be present at the sessions. The scabini were usually appointed by the count from the pagus in the presence of its important inhabitants. They were the count’s men, but answerable to the missi dominici. The judgments of the mallus were protected by res iudicata, although under certain circumstances a party might be permitted to seek leave of the king to appeal to the palace court. The missi dominici performed the broadest of functions in Carolingian government, only one of which was to act as judiciary. The king personally commissioned an officer, the missus dominicus, to act on his behalf and imbue with royal presence a specified region, with instructions, sometimes oral and at other times in a written capitulary, to exercise the delegated power either for specific missions or on a general mandate. The functions of these missions were to inquire into legal abuses and injustices, deal with them by personal action or through the decisions of the judicial assizes over which they presided, and report to the chief of the state on those injustices not remedied; notify the people through their noble representatives with respect to new decrees; report to the king concerning problems or gaps in laws and regulations in force, and submit for his judgment uncertain cases. The precise powers, limits and disciplinary mechanisms in respect of the missi’s authority were contained in the capitularies. The assizes of the missi, whose composition included any of counts, royal vassals, bishops, abbots, scabini and other important men and legal practitioners, might have cases delegated specifically by the king through a written order obtained from the palace, or otherwise deal with

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any appropriate matter; from 802 their competence was concurrent with that of the mallus, and recognised particularly for cases concerning the personal status of a free man, landed property, and the condemnation of a person to death.32 Even before the Carolingian legal renaissance monarchs adopted techniques in law reform to increase and ensure the jurisdiction of royal justice. The proliferation of laws and fixed-scales dealing with compensation and penalties for crimes can be traced to a number of influences, some beyond the scope of sovereign activity: the Church’s conventional role as legislator and the systematic nature of canon law, and the continuity of Roman provincial law, perhaps a legacy of the unofficial Roman law that was perpetuated through custom in the rural, communal regions into which the Germanic tribes settled.33 Without much doubt, the correlation of similar practices amongst the Franks, Visigoths and Lombards suggests that the imposition of a structure of pecuniary compensation and penalty in place of the blood-feud became an established element of the common law of early medieval societies. Of course, this preference for monetary remedies went hand in hand with the more general stratification of the population as legal persons. The wergeld or “man-price” established the individual’s social status. It determined if he could properly act as a witness in judicial proceedings, and the amount of property forfeited in the event of perjury. It was used to calculate the compensation or fine payable by an offender: the higher the rank or wergeld of the victim the higher the amount payable; conversely, in cases of crimes against the king’s peace the higher the wergeld of the offender the greater the penalty. We cannot overlook the fact that the stability, consistency and certainty provided by the prescription of fixed compensation and penalty levels was a significant inducement for litigants to seek royal justice. Certainly in the cases of homicide and personal injury the attempt to curtail the resort to blood-fued served first and foremost to transfer justice from the hands of private individuals to that of the crown. It was a matter of simultaneously maintaining public peace and appropriating the right to take property and to take life. The punishment of murder through the confiscation of the offender’s property was uniformly legislated for in the Capitularia regnum Francorum, the Lex Visigothorum and the leges of the Lombard king Liutprand. Moreover, legislation and judicial practice emphasised the need for the payment of compensation to the injured party to be a public gesture so as to serve as an example, a public display of the workings of royal justice, and concurrently put an end to the dispute.

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Beyond the regulation of private disputes and social control, here we also have the early motions of the fiscalisation of the justice system. The exercise of justice became profitable for the king through the same mechanism utilised to absorb responsibility for the preservation of the peace. In time the range of monetary penalties and the subject offences increased. In some instances compensation itself was divided into a payment to the injured party and a contribution to the royal exchequer. The long process of the conversion of private offences to offences against the king was integral to the revenue-rich basis of judicial fines and confiscations. It is in the context of both the attempt to expand the king’s control over the realm through the grasp of royal justice and his financial stake in the way in which justice was exercised that we can understand the rationale for the progressive dilatation of the concept of the “king’s peace,” beginning with Charelmagne and carried to its limit by the later Medieval monarchs. The jurisdiction for breaches of the king’s peace belonged to the king’s person and entailed special punishments, from double compensation to execution. Crimes against people on highways, violence against persons in the presence of the king or in the king’s house or hall, violence against pilgrims or emissaries to the court, and refusal of military service are typical extensions to the peace of the king found in Carolingian and Anglo-Saxon legislation of the period. The king’s right to judge was perhaps the most visible mark of the sovereign’s personal appropriation of public space and activity. At the same time, the exercise of this right reified in a juridical-institutional form what had developed through centuries of theological scholarship: the mystical and privileged devolution of divine justice to the king. This privilege and sanctitude was to some degree responsible for the monarch’s treatment of state justice as part of his private estate. Whether the merging of public and private spheres was originally a legacy of the early Germanic tribes or evolved in the fragmentation of imperial jurisdiction and the subsequent territorial reconstructions, the judicial and legislative framework of the kingdoms reflected the singularly private nature of law and justice and their importance to the royal patrimony. Even during the age of legal codification the oral foundation and substance of the law prevailed. The early Franks entrusted the rules of law to the memory of legal specialists known as the rachinburgii, the predecessors of the Carolingian scabini. As sole carriers of legal knowledge their decisions were as unpredictable as they were subjective.34 More important is the fact that the laws of the early Medieval kingdoms were by and large based upon the ethnicity of their subjects—the so-called personality principle. From the fifth century onwards the universality of Roman law gave way to

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a multiplicity of regional laws, some with personal and local application, others as compilations of the existing laws of the Romanised population, others yet with a combination of Gothic and Roman characteristics as an attempt to unite the peoples under a single, territorial law, as for example with the Visigoths and Burgundians. Naturally, each of the new states instituted laws in the context of their own unique conditions. The Ostrogoths who, lead by Theoderic, were invited to Italy to assist the emperor Zeno to regain control, found a stable Roman judiciary and law schools. The Visigoths who migrated to the heavily Romanised regions of Gaul lived side by side with the existing Gallo-Roman peoples and to a large extent within the imperial structures. They adopted the Theodosian Code before king Euric drafted the text known as the Codex Euricinianus. Later, Alaric II commissioned a compilation of laws, juristic writings and interpretations on the model of the Theodosian Code, the Lex Romana Visigothorum, which by the middle of the seventh century had achieved the status of a coherent, comprehensive and exclusive codification. Similarly, the Burgundians relied on Roman legal experts in drafting their Lex Burgundionum, the personal law of the Burgundians, and compiled their own collection of Roman law as the Lex Romana Burgundionum. The Franks, who were constituted of various tribes, promulgated different sets of laws: the Pactus legis Salicae of the Salian Franks, the Lex Ribuaria of the Ripuarian Franks from the Rhine region. As for the Anglo-Saxons, it was the lack of a strong Roman presence in Celtic Britain, that is, a centralised state apparatus, which rendered inevitable the development of a number of small territorial kingdoms, each with their own particular legal systems. The personal nature of laws made it difficult for justice to be seen as possessing any sense of universal legitimacy, even with its divine origins. The law was the king’s law, and he guarded it with paternal authority for his people as he did the rest of his property. Similarly, in relation to fiscal matters we know that the Merovingian and Carolingian kings dealt both with revenue from taxation and booty from successful military campaigns as part of their personal treasury rather than a public treasury. When the king died this property was divided equally amongst his heirs in the same way as private property. In fact, it was in the Carolingian period that state taxation ceased. In its place were the mutual exchange of gifts and the personal contracts of service that maintained the bonds between the royal head and his noble warriors. The Merovingian kings had already exempted from ordinary taxation those Franks who served them with their blood. “Inevitably the word “franc” (Frank) came to mean “free,” hence exempt from taxation. Anyone who paid taxes bore the stigma of servitude, and the tax itself was degraded to a

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level equal to that of any other private service.”35 As the king came to be viewed as a landowner with his own private interests the financial resources of the state diminished, and with them went any ideal of the state as public property. The practice of the division of territory upon the death of a king was a dominant feature of the history of the Franks since the Merovingian division of Gaul into independent regions—it was the ultimate manifestation of the idea that the king and the state were one and the same thing. Needless to say, the royal privatisation of the public sphere was historically a more extensive and complex process than outlined here. Importantly, it was one that did not always harmonise with the doctrine of kingship by divine right. Clerics who were schooled in Roman culture and Roman law could not but mourn the decline in the adherence to the ideas of the common good and res publica as regulatory principles of political governance. It was perhaps an unforeseen consequence of the royaltheological discourse carried on with such fervour on the part of Christian writers who were coming to terms with new socio-political environments and, lacking the traditional support of imperial institutions, sought out their relevance to these novel conditions. However, there was nothing fortuitous about the ways in which the Christian discourse on kingship provided critical openings through which ecclesiastics would create opportunities for control and influence over the large personal estate of the king and the exercise of sovereign power.

The Ecclesiological Reformulation of Political Power Beginning with the Visigoths and then practised by Anglo-Saxon and Carolingian kings, the liturgical coronation ceremony or royal unction grew in significance and importance at about the same time that the ecclesiastical authorities, already in their advisory and consultative robes, institutionalised their presence in the functioning of sovereign power. In the Old Testament clerics discovered an ancient tradition in which priests and prophets, acting as mediators between divinity and kings, anointed Jewish kings and thereby bestowed royal legitimacy. It was a constitutive act of rebirth in which the anointed king was simultaneously given the responsibility of ruling over the Lord’s “inheritance” and granted the protection of inviolability. The Church of the early Middle Ages, with the support of Gregorian and Isidorian theology, converted this tradition into a sacrament, a characteristic it would hold in some circles to the thirteenth century. Of course, in the background to the potent imagery of the sacrament existed policies that had nothing to do with the sacred nature of

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unction. There was sometimes the need to legitimate a monarch’s ascension to power in the absence of hereditary lineage, to replace royal blood with consecrated oil, as with Pippin’s anointing in 751. More insidious were the Papacy’s zealous attempts throughout the eighth and ninth centuries to establish relations of dependence with kings in order to reinforce its own temporal jurisdiction, its right to govern human activity; it did this not by alienating the king from his claimed source of authority but by offering to reify and intensify the link with divine right through papal intervention. Medieval historiography has perhaps exaggerated the significance of unction in relation to the political strategies involved in the ecclesiological reformulation of political power. One suspects that this ceremonial act, with its symbolic mystique and literary references, was merely the exposed surface of a process in which much more substantial changes were taking place below. We are thinking here primarily of the practices through which royal law and government were informed and often dictated by ecclesiastical concerns, practices which, though highly visible, gained momentum and legitimacy gradually and progressively. Naturally, a thorough analysis of these practices would need to consider the various European kingdoms on their own terms. The Anglo-Saxon kingdoms, in which monarchs played a crucial role in the conversions of their peoples to Christianity, developed quite different Church-state relations than those on Frankish lands, in which a Roman sacerdotal nobility survived and consolidated its hegemonic status early on. At the same time, institutional differences are often smoothed out when observing actual practices, and similarities emerge quite apart from the substantial evidence of crosscultural movements and influences throughout the early Middle Ages. As we have seen, the bishop’s pastoral function in Late Antiquity extended to representing the entire population at the level of everyday cares: settling private disputes, preventing communal disruptions, dealing with poverty and other inequalities, judging on private morality and the moral qualities or consequences of public acts. Bishops and priests were able to maintain such a close and penetrative presence in the lives of the people long after the imperial cities faded in size and importance primarily because, though the Christian Church claimed ultimately to be a supranational community, it organised itself at the local level, and multiplied these localities as the population dispersed. The basic unit was the parish church, the focus of the community’s spiritual and social existence: it was a meeting place where all classes could gather, an almshouse for the needy, a court for litigants, and the point for diffusion of Church laws and teaching. As centralised royal rule began to establish itself monarchs

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found in the Church’s extant organisation a stable and effective network of territorial districts through which to govern. From the late eighth century Carolingian legislation, as well as synodal legislation, required that every subject be incorporated into a parish. Besides structuring and regularising religious preaching the parish became the centre of social and legal life, and parishioners were henceforth restricted from availing themselves of the services of neighbouring parishes.36 The parish priest, as the effective ruler over his faithful subjects, replicated the superior authority of bishops and abbots and brought this to bear on the responsibility, supervision and control of the parish community. In particular, one cannot overestimate the considerable influence of parochial organisation in regions outside of the major cities, where the priest was generally the only public figure of authority with daily contact with the inhabitants. Similarly, Lombardian Italy was systematically organised along the lines of bishoprics and plebes which crisscrossed the country and provided the effective entry points for establishing control over the lay population. This state of affairs made it quite easy and advantageous for the Carolingian empire to absorb the Lombardian bishops into its governing structure and provide them with jurisdictional powers similar to those granted the counts.37 From about the late eleventh century the traditional conception of sovereignty, with its elements of Christian pastoralism and dominated by the figure of the king-judge, came to be reformulated under the strain of the religious-secular relation. The king’s dependency upon the theological politicisation of sovereign power, from whence derived the divine origin of his mandate and the sacrality of his person, had progressively made room for ecclesiastical intervention in the exercise of the royal office. With this intervention the king’s person was gradually divested of its transcendent qualities. Amongst those whose calling, lifestyle, sacrifices and daily work were devoted to administering the faith it became less obvious to view the king as possessing the same inherent sacredness otherwise reserved for saints, martyrs and the pope. Naturally, there were Christian writers who continued to sacralise the king in Christocentric terms. The anonymous Norman cleric who left some important tractates on Christian kingship around 1100 elaborated a thesis in which the king was nothing less than christomimêtês, the perfect impersonator of Christ on earth. However, as Ernst Kantorowicz notes, the writer was defending an idea which was anachronistic for his age, a time in which the reformed papacy, strengthened by the emperor-papal conflict known as the “investiture struggle,” was disavowing the liturgical notion of kingship.38 In fact, it was at the very height of Christological kingship, in the era of Charlemagne, his successors and the Christianised Anglo-Saxon

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kingdoms, that is, broadly between the eighth and ninth centuries, that the ecclesiastics, borrowing from the tradition of the king-judge that we have already observed, substantially transformed the mode of exercise of sovereign power in a way which irreversibly associated kingship with the law-making function and at the same time made possible the later reforms of the Church and its separation from the secular sphere. What made legislation such a pervasive instrument for the consolidation and strengthening of monarchical rule extended beyond the age-old notion of public order and the efficacy of centralised juridical rule; it had largely to do with the form and function which legislation inherited from the Church. For one thing, the laws of the Church were not limited to purely religious and ecclesiastical regulations (canons, decretals, theological teachings) but dealt also with matters of social, economic and politicaladminstrative relevance. Second, the conversion of Roman legislative structures and legal principles into its own form of canonical precepts, norms of religious behaviour and precise legal rules gave Church jurisprudence a definitive organisation, consistency and recognised authority. Third, the laws of the Church were both uniform and complete, to a degree not found in Classical Roman law let alone the vulgar strands persisting in the new dominions. To some extent written law served the monarch in much the same way as it did the Church: the successful government of a multi-ethnic state was seen to depend upon its submission to one set of laws in the same way that the population adhered to one religion and was thus united under one church. The commonly assumed titanic clash between customary law (consuetudo) and written law (lex) in the early Middle Ages simply did not take place. This is because, leaving aside the occasional use of dooms, decrees and legislation to codify the local or regional customs, the practice of legislating brought with it new rules, new purposes—that is, a new concern with the uniformity, comprehensiveness and verifiability of laws—and a new ethic in which the reverence for ancient custom was displaced in favour of the law’s capacity to deal with new situations and resolve all disputes. In a now famous capitulary Charlemagne declares an important jurisprudential principle in the spirit of reform and innovation: It is Our pleasure to establish that where there is a law it shall take precedence over custom and that no custom shall be superimposed upon law.39

It was also the case that where customary law conflicted with Christian doctrine the king would often enact legislation based upon the synodal resolutions critical of those customs.40 The demise of oral legal traditions

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had less to do with a legislative revolution than with the new needs and expectations of the royal juridical order and the influence of the Church within this order. When considering the rise and importance of legislation as a governing tool within the kingdoms of the early Middle Ages the situation of England stands out. We can perhaps suggest a few reasons for this. The questionable extent of the Romanisation of the native population and the Celtic migrations into Wales and Brittany meant that England lacked a strong representation of subjects that had lived under vulgar Roman law.41 The emergence of written law was therefore seen to be a purely ecclesiastical innovation. The new laws were the laws of the Church. Where the Visigoths and the Salian and Ripuarian Franks resorted to their versions of Roman rules and procedures for secular law, even with respect to legal domains over which canon law had its own rules, the AngloSaxons turned to the Church’s well-established and systematically organised laws. Coupled with this was the fact that the clergy maintained a monopoly over education and the production of texts. Unsurprisingly, royal legal texts were often drafted by bishops and their clerical staff. Wulfstan, the archbishop of York, if not the actual drafter, nonetheless exercised notable influence upon the later laws of Aethelred during the late tenth and early eleventh centuries. The long history of ecclesiastical involvement in royal legislation in England begins with Aethelberht of Kent, the first Anglo-Saxon king to convert to Christianity. His code, written in the vernacular iuxta exempla Romanorum, that is, probably drafted by experts in Roman law, deals primarily with criminal law and procedure. Bede notes that the code sets down what restitution must be made for the theft of property belonging to the Church, the bishop or any other clergy, and comments that the laws were designed to give protection to those whose coming and whose teaching the king had welcomed.42 The use of written legal instruments in the nature of dooms (royal judgments or decrees) and codes was the prime means for the Anglo-Saxon king to integrate the Church within a society defending a primarily oral culture. Ine of Wessex, Wihtred of Kent, Offa of Mercia and Alfred the Great continued the law writing convention, extending the topics, jurisdiction and detail of the codifications and at the same time asserting in more direct language the duty of the monarch to legislate and govern upon ecclesiastical matters—of the ten extant sets of laws promulgated by Aethelred five are devoted to the laws of the Church, ranging from Christian crimes to ecclesiastical privileges. By the time of the late Anglo-Saxon kings this duty was a working assumption of royal rule:

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Frequently and often it has come into my mind that sacred precepts and wise secular decrees promote Christianity and strengthen royal authority, further public interests and are the source of honour, bring about peace and reconciliation, put an end to strife and improve the whole character of the nation.43

There were a number of more specific ecclesiological practices by which relations of political power came to be modified, reconstituted or exercised with a new purpose and intensity through regal laws.

Hierocratic office We have gleaned that a common thread of the Christianisation of political power since late Antiquity was the involvement of bishops, priests and the entire clerical hierarchy in the governmental structures, whether of the Roman empire or the Germanic kingdoms. This, of course, took place with different degrees of penetration, conflict and success in different places and at different times. There are many recorded incidents of local struggles between important bishops and the royal court, and between the ecclesiastical and secular nobility, especially in regional areas, across most of Europe. What signaled a change in the ebb and flow of these struggles, at least within the mature Frankish and Anglo-Saxon kingdoms, was the creation of a formal and organised sacerdotal presence in government. Ecclesiastical influence on the Roman and non-Roman populations of the early kingdoms, which in its irregularity and discretionary exercise could be as harmful to the interests of the king as it was often a stabilising force, was converted to official posts in the royal administration. Both Pippin and Charlemagne played active parts in the institution of an relatively homogenous clerical elite to work side by side with and to supervise an aristocracy of counts. The royal Carolingian Capitularia gave bishops judicial prerogatives including inquisitorial functions, to be assisted by royal counts and other officials. As day-to-day officers of the crown and secular administrators, quite apart from their special function as experts in royal assemblies, the ecclesiastics were expected to have a working knowledge of law and legal procedure. It was an environment conducive to bringing learning and literature out of the cloister and into government practice. The concern with efficacy and uniformity in communication may be detected in the development of a more legible and graceful writing script and the diffusion of a grammatically more correct Latin.44

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The defence of the Church From the moment that the king was seen to rule by the grace of God, that rulership was considered a divine trust, and that this ministry was to be exercised for the sake and benefit of the populus Dei, responsibility for the defence of the Church operated as a fact of political power. The extant Anglo-Saxon legislation is replete with references to this obligation. In Aethelred it is decreed that “all Churches shall be under the special protection of the king and of all Christian people.”45 The defence of the Church was a reciprocal obligation, in a threefold sense: it was a primordial condition of the relationship between the king and the Church, vested as part and parcel of the divine grant of political authority upon the sovereign; it was the basic Christian duty observable by every person on an individual level in his relationship with both God and ecclesiastical authority; and, by virtue of the necessity for royal protection through the promulgation of laws, it became an element of the juridical relations between the king and his subjects, another way in which the individual was answerable to the crown with his life and possessions. In Cnut’s first ordinance, every church being rightly in the protection of Christ himself creates the special duty of every Christian man to show great respect and a zealous upholding of that protection, and next to it the protection of the king, violation of either leading to the loss of both land and life unless pardoned by the king.46 This statement alludes to the fact that the actual implementation of the reciprocal obligation occurred through the extension of the jurisdiction of the king’s peace so as to apply also to the Church. This extension of the king’s peace took two forms. At the architectural level the very walls of church buildings and the spaces encapsulated within were treated as sacrosanct. Attacking church buildings and destroying or pillaging church property were certainly offences, but so too was the commission of certain deeds within church walls, such as homicide, fighting, and illicit intercourse. Nor were these deeds exhaustively cited; any other act considered to break the protection of the church because performed within consecrated religious space was an offence, punishable by death or compensation depending upon the nature of the offence and whether the offender sought sanctuary.47 Sacrosanctity was also accorded to the body and person of the cleric. In the laws attributed to Edward the Elder and the Viking King Gunthram there is reference to the responsibility of the king and the bishop to act as kinsmen and protectors for a man in holy orders if anyone attempt to kill or rob him.48 The laws of Cnut created offences for slaying a minister of the alter and binding, beating or deeply insulting a man in holy orders, with penalties including excommunication, compensation to the victims’ kin,

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forfeiture of possessions and fines due to the bishop and king, always with the possibility of mitigation by making amends to God and men.49 Similarly, laws from Alfred, Edmund, Aethelred and Cnut proscribe the abduction of a nun without the permission of the king or bishop, lustfully seizing a nun either by her clothes or her breast without her permission, and attacking, injuring or fornicating with a nun.

Offences against Christ As we have already surmised, the relationship between ecclesiastics and the monarch did not follow a predictable course. The ecclesiastical promotion of the Christian king as Christ’s deputy, in some circumstances saw the king take on responsibilities for the supervision and guidance of the clergy, in other circumstances it bound the monarch and his official machinery to adopt sacerdotal concerns and submit to the advice of ecclesiastics, however removed these domains were from the conventional ideology of royal rule. What was most pronounced in this experimentation with mutual reliance and legitimation was the creation of a new juridical space: the morality of certain acts or practices became legal issues as legislation became the official vehicle for the public implementation and policing of religious values. First, with increasing frequency from the ninth and tenth century, royal laws prescribed rules for ecclesiastical discipline, regulating the behaviour of the entire spectrum of the clergy, from the lowliest priest to the abbot and bishop. Inspired by monastic discipline this juridification of ecclesiastical life effectively striated the notion of Christian duty to so as to be applicable in a relatively homogenous way to all persons exercising authority of one form or another over the general population. Second, in the Anglo-Saxon realms there was a continuous preoccupation with the old religions, those persisting after the Christian royal conversions and those accompanying the resurgence of pagan culture with the Viking invasions.50 Kings and their ecclesiastical advisers found it necessary to legislate for the destruction of idols and the prohibition of pagan rituals and heathen practices. Third, the general religious behaviour of the people were subject to legislative governance. The observation of feasts, festivals, fasts, confession, the sacraments and prayer (including the need to pray for the king), burial of the dead, the learning of the creed and recitations—these and many other strictly religious acts were the subjects of regulation through the law codes. Fourth, there was a general assimilation of secular and religious offences within the one legal framework. On the one hand,

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certain secular offences were turned into sins. For example, treason against the king was considered a sin for which the penalty of excommunication was appropriate. On the other hand, offences against religion were dealt with as crimes against the king as well as God. Finally, royal law provided for the king’s exercise of the discretion of mercy in the judgment and punishment of offenders, reflecting God’s merciful nature in pardoning sinners. The availability of special sanctuaries and asylums, from the king’s person to the walls of the church, was a function of this shared sacral responsibility on the part of the king and the clergy for intervening in the punishment of crimes for the sake of mercy and the possibility of repentance.51

Fiscal privileges The royal grant of fiscal and proprietary privileges to the Church facilitated an entire economy largely separate from the economy of the state, although tied by the legal framework from which the privileges derived. The Church had its own property, collected its own taxes, employed its own workers and had its own means and technologies of production. Very early on monasteries received gifts, proprietary interests and royal grants of jurisdictional immunities. Charles the Fat granted bishops and the inhabitants of church lands exemption from the jurisdiction of the counts. Charters from the Mercian king Offa granted land in perpetuity to churches. In the late seventh century code of Wihtred of Kent it is stated that “The Church shall enjoy immunity from taxation.”52 At a similar time the laws of King Ine of Wessex declared the right of the Church to tax for its own benefit. What purpose did the legalisation of these privileges have? At the most transparent level, the customs, practices and relationships constituting the organic foundation for the economic stability and growth of the Church, which had evolved through the history of secular-sacred relations stretching as far back as imperial Rome, were recognised and reified in a coherent, verifiable and prescriptive format. Further, the creation of a distinct, privileged juridical domain for the financial organisation of the Church set the stage for the Church to exercise political independence and convert its own social ethics into rules on economic matters, for example with its laws on usury and credit. From another perspective we might say that the codification of the Church’s special status in royal laws provided the structural basis for another economy to exist side by side with the economy of financial resources and payments: an economy of rights. The constitutional part of

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the pre-liturgical coronation proceedings of the Carolingians (the Petitio episcoporum) introduced by the archbishop of Rheims, Hincmar, had the king swear a solemn promise to observe the “canonical privilege” and laws in relation to every bishop and his church within the kingdom.53 The Church could henceforth claim its rights against the crown and its officers—rights over its property, the right to immunity from taxation, the right to its share of compensation and penalties from contraventions of the law—and against the peasantry—the right to impose dues, tithes, alms and other taxes. The legal obligation for Church dues, no less than those for royal taxation, were laws of the kingdom and thus could be enforced by the king on behalf of the Church. In this way, basic fiscal relationships in the form of claims of right and enforceable obligations bound each individual to the royal treasury and the Church within a socio-economic field still permeated by traditional, unregulated forms of organisation (the family, the kindred group) and unsophisticated forms of production. In the course of the eleventh century this socio-economic field began to see the shapes of a significant transformation, with the new social relationships and economic constructs finding their perfect expression in the economy of individual rights.

Right & Fidelity Christian writers from Ambrose onwards spoke of a basic rule of law by which kings were bound to respect their laws. However, it was not because of any idea that secular law was through its very declaration or promulgation inviolable that monarchs shared the same duty of compliance as their subjects; it was because the king’s right to make laws was a divine gift, a commission, hence his laws were marked with God’s justice. The coronation ceremony in the age of the later Carolingians contained a signed declaration that the king would observe the rules, laws and statutes of the realm, presumably both the existing laws and those he would promulgate himself. Interestingly enough, there was very little discussion by the early Medieval writers as to the content of divine law and the ramifications of a conflict between it and the temporal law of the king, topics which in the high Middle Ages assumed great importance amongst jurists, secular and sacerdotal. Naturally, ecclesiastics often spoke confidently of the king’s subjection to the laws of divinity, though no attempt was made to interrogate the inconsistency arising from the ability of God’s chosen ruler to stray from the terms of his mandate. What they did instead was ordain themselves as mediators between the two juridical realms, as specialist carriers of knowledge on divine law, as guardians of

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Christian norms, as protectors of the grant of right by which the ruler exercised power over the Christian population. The ruler was effectively incorporated into the Church, subordinated to the demands of religion and expected to seek and act upon the counsel of the ecclesiastics. At the same time and as effects of the same methods, the Church helped to build the monarchical edifice of Christian kingship, to invest it with a religious history and a transcendent authority, and to systematize the juridical function which was its political power base. Within these discourses there was a good deal of ambiguity as to the precise role which divine law and right played in temporal government. Isidore’s discussions on the nature of kingship inevitably revolved around the concept of “right,” taken in the sense of both a norm (“doing right”) and a quality of thing or action (“right law,” “bring things into the right way”). Generally speaking, these semiotic uses of the concept of right were in line with the Greco-Roman tradition. For the Epicurians justice was not a thing in itself but the process through which the utility of social relationships was ensured: “Justice was never anything per se, but a contract, regularly arising at some place or other in people’s dealings with one another, over not harming or being harmed.”54 The Stoics had a more complex theory of right, bound as it was to their ethics and physics. Intrinsic to nature is a norm of “right action,” the good which is the standard of all things. Chrysippus acknowledges that “Law is king of all things…and thus be the standard of right and wrong.”55 And Cicero’s statement that to disobey natural law is to flee from oneself conceives of right as a relationship between human action and reason. Similarly, Roman lawyers understood ius in two distinct ways: in one sense a right was an incorporeal entity (rem), a legal attribute inhering in corporeal things; in another more general sense it was the rendering of each his due or share (as in Ulpian’s suum ius cuique tribuere—to render to each his right). Lombardian and Carolingian documents used the term iustutia to refer to either the process or the state of affairs through which a claim of right was made, or the actual claim itself, the right as a thing. One possessed iustitia if one had a valid legal claim open to him. Phrases such as iustitam facere and legem facere reinforced the usage of the notion of right as the act of making justice, the obligation to grant others their due. The view propounded by writers such as Hincmar of Rheims that both laws and customs sometimes conflicted with the law of God and thus needed to be varied or suppressed assimilated the idea that the king’s law was subject to the application of the concept of aequitas. In reality, it was a practical working concept, translating the dictates of Christian conscience into a regulatory instrument for shaping social relationships, and not a sword to

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regulatory instrument for shaping social relationships, and not a sword to strike down established laws that contravened religious principles. From the tenth century onwards Anglo-Saxon kings made three promises at their coronation, the third of which was to do justice with aequitas and misericordia.56

The idea of right as effecting justice, as doing something to bring about a state in which a person’s due or share is ensured, coupled with the association of justice with equity, served to reduce the lofty notion of divine law to prescriptive rules, rules inherently open and flexible in their semantic content if fixed in purpose. Late Anglo-Saxon legislation is replete with references to justice (rihte), injustice, right and righteousness, often in the context of quite specific legal provisions, for example, dealing with the exercise of justice or other activities by officers of the crown. Cnut commenced his secular ordinance with the decree that henceforth all men, both poor and rich, shall be regarded as entitled to the benefit of the law, and just decisions shall be pronounced on their behalf.57

And in his proclamation of 1027 he vowed to rule the kingdoms and peoples subject to him justly and uprightly, and to maintain equity in all things.58 Amongst the articles in the Articuli Retractati which William the Conqueror and his officials gifted to the freshly conquered English nation is the decree to “execute justice and right judgments constantly by all the means in their power, without guile and without delay.”59 The precise extant to which ecclesiastics filled in the semantic content of these terms remains something of a mystery, though we can assume that the role they played both in setting the terms of government by divine right and contributing to the use of written law gave them a hegemonic status in legal hermeneutics. Quite apart from ideas about justice and equity, the exercise of political power was regulated, at least nominally, by the creation of relations of fidelity: of the king in relation to God and the Church, of the faithful in relation to the king, and later, from the ninth century, of the king in relation to the people as a whole. This also was a development influenced by Christian norms of morality. The act of swearing an oath was both a sacred and juridical act (hence, iurare—to swear). Moving from the Visigoths to the Carolingians and the late Anglo-Saxons, the relation of fidelity involving the sovereign was modelled on the relationship of men to their lords, a relationship of mutual promises and dependency. The Merovingian kings sought to have all free men swear fidelity to them. Additionally, some kings relied on a special oath of allegiance from

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fideles, those who were required to provide military service. It was a way of maintaining and strengthening the political and administrative structures, especially when the relationship between the king and his counts lost its personal quality. Charlemagne deepened the significance of these ties in the capitularies of 802: all men were required to affirm their loyalty and to confirm the emperor’s right to summon an army, to be faithful in the same way that “a man ought in right (per drictum) to be faithful to his lord”;60 however, he went further to pronounce his responsibility before God for the faith and welfare of the people. The oath sworn by William the Conqueror followed the Carolingian precedents. The context in which these embryonic relations of fidelity appeared was an ever-increasing need for monarchs to establish relationships of faith with a whole range of persons entrusted with royal authority, within an administrative structure growing more complex as the process of the territorial consolidation of kingdoms took form, and by virtue of the operation of a political system whose integrity and internal consistency became more dependent upon the efficacy of accountability mechanisms as political power was invested with new objectives, functions and players. The heart of this network of relations was the direct, personal relationship of service of an individual to the king. The king’s pledge to God, the Church and the people as a whole was marginal to the network, nor even a necessary component of it. It remained, however, in harmony with the pastoral and hieratic features of the Medieval king, and it suggested a framework for the socio-political, economic and legal relationships that were to develop in this increasingly stratified Christian society.

CHAPTER THREE FEUDAL RIGHT

“We cannot live together with equality of condition, hence some must command and others obey.” — Charles Loyseau, 1610

Feudalism in the History of Rights Political and legal theory has tended to view the history of rights in terms of epic movements in philosophical thinking. The conflict between the “ancients” and the “moderns” continues to dominate political philosophy. Jurgen Habermas writes of the great shift from the Classical Greek doctrine of politics to modern social philosophy as the basis upon which the nature of politico-legal relations since the emergence of the modern nation state may be understood. The Aristotelian conception of politics, he argues, is governed by three distinctive qualities: its ethical foundation, such that neither legality nor ethics can be separated from political questions; its operation as praxis, that is, the pedagogic cultivation of the self, rather than through political technology (techne); and its essential distinction from knowledge or science (episteme), being a practical philosophy of prudence (phronesis). Modern philosophy inverted these presuppositions, making political theory a distinct science with its own ontology and logical necessity, projected towards securing knowledge of the nature of justice. Whereas Aristotle’s polis is concerned solely with the virtue of its citizens, as members pursuing the interest and good health of the polis, and thus is distinguished from a commercial association in which members each pursue their private interests albeit in a common space of intercourse, Hobbes deals precisely with the natural law construction of such a commerce of bourgeois private individuals, regulated by private law and protected by the sovereignty of the state.1

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This type of intellectual analysis meets its threshold where one seeks to situate the theory of right at the level of the immediate relationship between the exercise of right (in its manifold forms) and the object of its exercise, that is, the place and circumstances of its application, where it organises itself through certain institutions, rules and practices, and the effects of this organisation. Whilst it is true that right has been bound up with the question of legitimacy in relation to political power since the early Middle Ages—whether in support of a sovereign right of control and obedience or in the construction of a space for individual freedom against the concentration of authority in the state—it has had a parallel existence which has yet to be properly accounted for. Right was not always the king’s right; it did not always govern the relationship between the king and his subjects. We have already examined the discourses and historical processes through which the early Medieval kingdoms came to associate their existence and function with divine right, how their political power came to be defined and formulated in accordance with pastoral principles and continuously reformulated through ecclesiastical intervention and participation in temporal government, and the juridical manifestation of the king’s exercise of the right to rule the Christian populus. But we have also encountered certain forces, both internal and external to the historical equation of sovereignty and right, which rendered these primitive forms of sovereign power debile or at least contingent—the privatisation of the public political sphere, the investment of political power in the Church, the embryonic stages of a discourse on justice, equity and rights as limitations on royal activity, and the development of relationships of fidelity. In the Classical age of the seventeenth and eighteenth centuries right was concerned with issues of sovereignty, social production and social order. The doctrine of reason of state, which had adapted itself almost imperceptibly from the Renaissance city-state to the more rigorously bureaucratic and territorial monarchy of the sixteenth century, had lost much of its force. The world of Thomas Hobbes was dominated by the political ramifications of the English civil war, to be sure, but also with the financial concerns of the state revenue, population growth and the peasant uprisings and rebellions. It is in a dual sense that right became intertwined with sovereign power. First, from the late Middle Ages onwards, both political and theological discourse assumed a focal point in law, which eventually crystallised in the complete juridification of the sovereign body. Second, the notion of sovereignty itself began a course of expansion to deal with the problem of its increased political power and the emergence of new socio-economic conditions. Its role was no longer concentrated in judicial, military and fiscal authority; instead it took an interest in the

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population as a social body, transforming the objectives and corresponding techniques of government to deal with health, education, migrations and relations of production. Whilst developing practices in administration, statistics and policing, in addition to its traditional military and judicial functions, the sovereign’s expanded power necessarily took the form and representation of right, the only relation which would make this monolith acceptable. How it is that the law-centred model of sovereignty became the paradigm of political power in the early modern state is largely beyond the scope of this analysis. On the other hand, the Classical model of the state may serve as a counterpoint in our investigation of the function of right in feudal society. In the sixteenth century feudalism became the object of study for jurists philosophising the concepts of sovereignty and statehood. Feudal power was viewed as the antithesis of sovereign power, not least to the extent that the latter was conceived as monarchical; but also in a broader sense, by which sovereignty was understood as the condition of the accumulation and centralisation of governing and policing powers with respect to circumscribed territory. In the indictment sheet it was argued that the feudal forms of power lacked all the prerequisites for sovereign power: namely, public officials, a centralised authority for fiscal and judicial matters, the primacy of the sovereign-subject relationship, equality in subjection, and the independence, supremacy and perpetuity of the sovereign body. Moreover, what were taken to be the intrinsic elements of feudal society were posed and assessed in the most negative respective light: feudal relations, private and systematically hierarchical, effected the contamination of public authority and the public sphere; feudal political institutions were composed of arbitrary and profoundly unequal privileges and immunities; feudal socio-economics reproduced universal slavery organised on the basis of the domain; the currency of the feudal economy was the human being objectified as a thing; an ethic of militarization infected social being at the highest level, and so on. This preoccupation with feudalism persisted well into the seventeenth and eighteenth centuries. In fact, it became a prime heuristic and polemical tool in the hands of the jurists and philosophers in defence of the royal system of government at the height of the European monarchies. For Jean Bodin and Thomas Hobbes sovereign power was characterised by public justice ensured by universal laws, as opposed to the suzerain’s individual justice consonant with private wars. For Charles Du Moulin and Charles Loyseau feudal power emanated from the treatment of human beings as property, confusing public relationships among individuals with the

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private relationship between an individual and a thing; whereas, the power of the public office lay in its very functioning, the exercise of authority.2 It is easily supposed that feudalism, or at least what was before the nineteenth century understood by that notion, had not entirely disappeared from the west European landscape, and in fact maintained a presence potent enough to incite critique of an age whose legacy was perhaps more surreptitious and dispersed than historically definable. The question of whether feudalism had been overcome with the emergence of nation statehood was no doubt felt acutely by the early modern theorists as a problem marking much of political and legal thinking. In truth, what remained of feudal society by the sixteenth century was less the feudal institutions of fiefdom strictly speaking than the institutions that antedate the era of the fief and were customised by it: the seigniorial or manorial regime which had bound landlord and peasant since the Roman Empire; and the theocracy of the Roman Church, whose birth in the late empire’s nobility and its early branching into monasticism assured it a certain and dominant role in the feudal system. This system reproduced itself many times over, inevitably changing in the process though leaving its most critical and enduring aspects largely intact. The rents and dues, the levying of taxes and even seigniorial justice, withered and scattered though they had become, formed the basic structure of the social order into which the emergent wealthy bourgeois bought their way from the Renaissance on. In the eighteenth century the southern regions of Italy and Spain, and certainly most of Eastern Europe, experienced a severe refeudalisation of their country. But even in the France of the absolute monarchy, arguably the least feudal country in Europe to the extent of the state’s administrative activities and reach, the royal state’s redefinition and re-situation of the nobility from land tenure to office tenure and corporate finance, and the privileges and liberties granted in order to make this renewed alliance possible, emitted a distinct flavour of the ancient feudal bonds;3 the king was still viewed as the lord of all lords, and with the monarch’s administrative strength the new terms of the hierarchical schema of private rights appeared all the more pervasive and oppressive. At a time when the English and French states emerged as primarily juridical and administrative—rather than military—apparatuses in the seventeenth century, it was the possibility of degeneration into a socio-political form inimical to the very premises of the sovereign state that drove the theorists to consolidate those premises in juridical concepts and language.

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In order to broaden the scope for an analysis of the legacy of feudal right as a set of institutionalised practices we should venture some preliminary generalisations, propositions that will need to be investigated. § In feudal society law dealt with the proprietary relationships between human beings; it was not at all concerned with the relationship of the ruler to its subjects as some sacred or distinct bond. Civil rights, then, were incorporated into the system of property ownership and essentially merged with the bundle of private rights affecting any one person. § With its subjection of all relations to the framework of property and the unit of the domain, feudalism established an important link between law and relationships of power, such that the latter were primarily exercised through the former. Feudal right manifested and extended this instrumental use of law. § Feudalism did not break the historical lineage of sovereignty; in a way, it grew from it, transforming existing features of the military state and generating an entirely new system of relationships amongst persons, based to some extent on the ancient manorial models. Thus, the royal sovereign assumed a position, albeit at the apex, in this structure of dependent ties. Sovereign power could no longer be equated with the sovereign will, or the representation of the divine will; it was effectively reduced to the composite relations of power effectual in the relationship of lord to vassal. § With the reconstruction of the monarchies during the gradual decline of feudalism, the relationships between the sovereign and the various social ranks continued to take the form of an economy of private (if not properly feudal) rights, liberties and privileges. There was no significant reversion to the earlier triumphant ages of kings. Nor did the reception of Roman law at about the same time facilitate the renewal of one of the great systems of public law. § Roman law, with its objectification of the world in terms of things, and feudal law, with its objectification of the world in terms of relations amongst human beings, took part in a mystical and convoluted association during the later Middles Ages, one that was decisive for the contemporary proliferation of theories of individual rights. Feudal relations were conceived within an environment of political dislocation and uncertainty. Forces which existed throughout the

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formation of the early Medieval kingdoms, parasitically clinging to the same structures with which centralised royal government was temporarily ensured, revealed the latter’s inherent instability and fragility. With the decay of the Carolingian empire, for both internal (dynastic) and external (invasions) reasons, the dispersion of political power into provincial localities effected the dismantling of the sacred sovereign body whose cultural and metaphysical significance had been in perpetual formation and reification for over a millennia in the legacy of Roman imperial politics and the Christological model of kingship. The bestowing of the monarch’s attributes upon otherwise non-sacred persons and the inevitable sharing of a once monolithic source of authority went a long way towards severing the link of kingship and sacredness. In fact, it may be said that the seeds had been sowed with the actual process of the Christianisation of kingship that we have observed. As a representative of God the Father, the king’s paternal role gradually came to be associated by analogy with the government of each household. Furthermore, his kingly powers came to be seen more and more as his private, personal, and hereditary property. This private appropriation of public power began at the top of the political hierarchy.4

The contamination of public with private power ran parallel to a ruralisation process which saw centres of power shift from the city (site of the emperor and bishop) to the country (the manor and the monastery). The new localities bore the signs of private, restricted places, protected by borders and barriers. The palace court, castle, estate, abbey, monastery, principality, even the city, all became enclosures that physically marked the division of inside and outside. Similarly, social relations were permeated with the significance of internal and external space. Relationships of trust were modelled upon filial bonds and built from oaths, promises and gifts. They were maintained within an insular and regulated milieu, and expected to hold out against the outside world. Relations of fidelity bound the prince and the lowly peasant, and everyone in between, in one way or another, to personal ties with other free men. Public service came to absorb the qualities of friendship and patronage, whilst private transactions served as the fundamental unit of political organisation and function. Within feudalism freedom was the condition not of civic participation but of being the subject of private relations involving benefits and burdens, services and duties; in short, the movement of rights across a hierarchically organised society. In a general sense we can say that the

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flow of rights in feudal society functioned in accordance with three general objectives or processes: § Preserving the system of differentiations in which differences of status, hierarchies of orders and differences of social functions were put into effect. § As a means to structure the new ties of dependence through financial and service levies, privileges and the heritability of feudal benefits. § The institutionalisation of private or non-royal jurisdictions and judicial mechanisms.

The System of Differentiations Let us begin with the general hypothesis that juridical relations in feudal society were predominantly modelled on the relationship of dominion: the right of ownership or possession of property. How it is that dominion of things, chattels and land, came to include dominion of persons is obviously tied to the history of slavery. Whereas during the high Middle Ages serfdom began to lose many of the characteristics which allowed it to resemble the institutional form of slavery known in GrecoRoman antiquity, the system of differentiations or orders that came to reflect the new relationships of fidelity and dependence carried the legacy of old and pervasive ideas. In spite of the vicissitudes of the feudal environment, a growing corpus of theological scholarship that had been constructed on the foundations of late antique philosophical justifications for slavery gave form to a Christian knowledge of man’s relationship with other men. We know that the early Christians were influenced by the Stoic idea that slavery was a condition of the soul: the slave was governed by his passions, emotions and external exigencies, whereas the master brought his moral attitudes and corresponding behaviour into line with the laws of nature. Among the many (and not always consistent) conceptions of slavery in the writings of the apostle Paul is the notion of human slavery to sin being replaced by that to salvation—as a slave to Christ and for the sake of his salvation the individual was expected to nurture obedience and humility towards God and other men.5 Ambrose, who was bishop of Milan in the late fourth century, borrowed both the Stoic and Pauline ideas in formulating his conception of slavery. In the Epistulae he states that “[t]hus natura does not make a man a slave but folly does, just as

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manumission does not make a man free but wisdom does”; and later he refers to the “liberty of being a slave” in imitation of both Christ and the apostle Paul.6 Thus began an entire theological tradition of understanding slavery in terms of morality and Christian teleology, to some extent indifferent to the very existence of the legal institution of slavery that persisted in the Christian era. It was left to Augustine to attempt to reconcile institutional slavery with spiritual slavery by means of a doctrine on the role of slavery in the divine order. First, for Augustine the legality of slavery was not merely a contingent fact of life, for whilst a possessor gains his power of possession from human law this man-made law is derived from God through the divine right of emperors and kings to rule. Thus, to the extent that slavery was seen to be sanctioned by God there was imported into the relationship of master and slave the Christian master’s responsibility for the spiritual welfare of his slave, just as the father must provide for his household, and the slave’s obligation to serve in obedience, in imitation of the life and passion of Christ. Second, in his De civitate Dei Augustine attributed the origins of slavery to the wretchedness with which human sin disturbed the natural order in which absolute freedom reigned: The prime cause of slavery, then, is sin, so that man was put under man in a state of bondage; and this can be only by a judgement of God, in whom there is no unrighteousness, and who knows how to assign divers punishment according to the deserts of the sinners.7

By associating slavery with the immanence and inevitability of sin Augustine devised a theological camera obscura with which to project a specifically Christian vision of social relations. It became possible to see the master-slave relation in all relationships. Between God and his son Jesus Christ, Christ and man, man and animal, father and child, husband and wife, landowner and peasant. “The world is like the household of god, and men are like slaves.”8 Indeed, it was the image of the household—a legacy of the late Roman noble manor—which endured into the feudal age and came to define the nature and function of the emergent principalities and castellanies. Even references to the familia and the paterfamilias must be understood in terms of the aristocratic household and its head, with its inherent hierarchy, patrimonial focus and reliance on servitude. Having said this, it is also the case that the notion of the “household” that assumed such a pervasive role in the feudal political system had undergone certain modifications during the early Middle Ages, largely the result of changes in land tenure brought about by the practices of the Church. Whereas the Roman concept of

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dominium was unilinear, connoting an absolute and indivisible form of ownership, the early Medieval Church took a variegated approach to the holding of land, allowing diverse uses and means of enjoying the land and its fruits. Primarily as an attempt to circumvent the canonical prohibition on the alienation of its lands, the Church granted the benefits of land in the form of a beneficium or precarium to its more worthy servants whilst retaining actual ownership.9 The transformation of the ecclesiastical beneficium into the fief took place within the Carolingian world, with rulers making these originally conditional or revocable grants of royal and ecclesiastical properties in connection with the provision of military services. It is not surprising then that ecclesiastical authority lead the way in establishing the relation of dominion as its working model. It was precisely the fact that servitude was the irrevocable condition of mankind, exemplified ultimately in the life of Christ, which suggested society be composed of relationships based on rank and mutuality. In France the monastic houses, some of which were the largest and most important social institutions of their day, operated under the patronage of specific saints, their feudal overlords. Just as all men were required to pledge their love and fealty to a superior, each Christian had to become a vassal of God, whom Lactantius had already described as simultaneously “father” and “master.” The temporal and spiritual forms of dominion reinforced one another. The Church estates, no less than their lay counterparts, brought together dependants of every rank, from villeins to military vassals. It was more than a symbolic gesture that the ritual act of homage—kneeling, bareheaded, hands clasped—became the posture associated with the Christian at prayer.10 At the same time that ecclesiastical and secular authorities were distancing themselves from one another, with the fragmentation of monarchical power and the emergence of local rulers in competition with the Church for land and the spoils of its exploitation, there was a confluence of the ways in which the individual was bound to his fellow human and his god. That is to say, the social forms of feudal dominion, that were in part conceived from and supported by theological doctrine, and took their specific shape from the Church’s innovations with respect to increasing the advantage of its proprietary interests, in turn influenced the way in which the Church preached the individual’s relationship to God and organised its own temporal functions and relations amongst its members. In an early eleventh century manuscript Hugh of St Victor in Paris speaks of the “two walls” of the Church unified and sanctified in one faith.

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With these two orders, laymen and clerks, resides the separation of offices, one earthly and inferior, the other spiritual and superior.11 In fact, the inferiority of secular power was sealed much earlier and in more than an ideological sense by the practice of royal ordination at the hands of the priesthood. Hugh of St Victor considered the ordination ceremony to give effect to not merely the sanctification of the royal office but its actual formation as an institution. To the extent that the Church saw itself as the sole heir of the imperial political system of ancient Rome, notably through the continuity of episcopal representation (the successor of the Roman magistrate) and the new architectural symbols of civic authority (the Cathedral replacing the town senate house) in the Medieval cities, ecclesiastical power deprived the secular monarch of the attributes and virtues which had been associated with royal rule since the age of Rome’s early kings. By the time of the complete dissolution of the Carolingian Empire in the late tenth century, it is true to say that the Christian Church remained as the only institution with any degree of super-territorial hold, symbolic or otherwise, over the diverse populations of Western Europe. The theme of the secular realm’s subordination to the spiritual realm drove an entire discourse around the late tenth and eleventh centuries at the hands of already powerful bishops, and abbots intending to secure the independence of their monasteries from the interference of monarchs and the ecclesiastical authorities. Their mission of revealing the innate structure of human society, comprised of the orders of the clergy (nobiles, oratores), the military (milites, bellatores) and the serfs or peasants (servi, laboratores), purported to show not merely the division of temporal responsibilities—those who pray, fight and work—but also the hierarchy in the distribution of power necessitated by the reflection of the heavenly economy.12 Of course, in the groundwork of this simplistic idea they had not conceived anything novel. A discursive formula for providential inequality had been set by both Augustine and Gregory the Great, was passed on by Isidore of Seville in the seventh century and substantially determined the framework of the operation of monastic orders under the early interpretation of Benedictine rule. Hence, nothing prevented such orders from fully integrating into the feudal system—the larger monastery was essentially a manorial estate, with the abbey surrounded by farming lands and peasants whose role was to supply the monastery so as to enable it to maintain its ideal of self-sufficiency without the monks having to undermine their liberty and nobility through manual labour. The inequality at the heart of the three orders pervaded all of society: at the lower end of the social spectrum it demanded serfdom from the populace in return for its spiritual guidance; at the upper end it meant that the king was bound to

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take advice on law and justice from those who had access to sapientia and justicia. The qualitative distinctions of ruler and ruled, freeman and serf, noble and non-noble, continued to be used throughout the high feudal age. However, neither these individual dichotomies nor the tripartite schema above, notwithstanding their ideological force in validating in the name of religious and natural law the theoretical premises of more complex social divisions, succeeded in reflecting the often subtle and nuanced differentiations given effect to by feudal practices. The chapter titled “The Freemen” in Friedrich Carl Von Savigny’s treatise on Roman law in the Middle Ages begins: The freemen were the basis of the Constitution of all the German Tribes. The essential character of that order, did not consist in the simple immunity from slavery, or in the enjoyment of personal liberty, merely negative advantages, but in the perfect capacity of acquiring rights, and of participating in all the legal privileges of the nation.13

Servitude did not disappear with the Germanic invasions, nor with the first great feudal wave. But certainly the distinction between the free and unfree lost much of its utility in an age in which relationships of dependence among the lower orders varied according to regions, types of territories and the customs of the manors. Freedom was a matter of privileges rather than status. Depending upon the terms of his providing agricultural service on land, the peasant might be unfree or free, an ordinary serf or a tenanted serf, and even possibly independent of a manor as the holder of his own allod, although probably subject to obligations. In any case, at least three factors worked against a pervasive and consistent use of the free-unfree classification in this period. First, a gradual shift in theological doctrine from the tenth century on—from concern with the person of Christ to interest in his salvific works and the redemption—created an influential tide of opposition to the argument of providential inequality based on original sin and to the constructed social order which followed; this came primarily from heresies seeking absolute equality in their quest for perfection, but also, importantly, from the reforming orders (Cistercians and Premonstratensians) whose views would become part of the mainstream in the twelfth century. Second, a process of manumission, which had commenced in the later Roman Empire, was carried through on a large scale in the Carolingian age and after, when insecurity and altered agricultural conditions rendered more effective the grant of physical protection and legal rights to freemen in return for the exaction of rents and personal services, than the possession of hoards of

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“human cattle.”14 Third, the meaning of freedom itself changed, so that as serfs assumed more specific obligations, whether to pay rent, to pay taxes or to perform special duties, their relationships to their lords became indistinguishable from those of a non-servile character. The derivation of the feudal domain from the Gallo-Roman villa explains the concentration of social existence in a rural, agricultural and private economy. It does not help us to understand the fusion of property and power peculiar to feudal law. If in Roman law men had rights only over possessions whereas power relations among men remained a fact of life, feudal law fashioned the rights of masters over men in addition to the civil rights based on property ownership.15 However, this of itself appears simplistic. Right moved in both directions. It characterised the relationship of dependence as well as that of subjugation, that of protection as much as that of personal service. This feudal shift—the legal formalisation of relations of power amongst persons—was accomplished neither by the coordinated force of the powerful over the weak, nor by the efforts of a sophisticated juridical apparatus, both features missing from the West at this time. Rather, its condition of being lies in the configuration or reconfiguration of customary law around differences pertaining to status (traditional or novel), disparities in economic circumstances, differences in means and modes of production and differences of social functions. We have already encountered the first principle of the system of differentiations: everyone belongs to the order; everyone has a role to perform. The second principle is that the system is self-legitimating: it has no other rationale than its own functioning, and it operates to conserve and extend itself. The feudal being had rights only to the extent that it could be located within a relatively rigid social schema, and its location determined the set of rights and obligations which normally would be attached to its existence. To be sure, there were persons in the feudal age, as in any other time in history, who could only be considered to exist at the margins of society. And there were always religious groups and sects forming in spite of and resistance to the organised mechanisms of differentiations and classifications, whether from the Church authorities or the privileged lay class. Yet, marginality and resistance merely reinforced the hegemony and pervasiveness of this relatively defined system structuring the vast majority of the population’s everyday lives. The differentiations determined by and giving effect to social functions, human behaviours and existential conditions were certainly not limited to the traditional differences based on status. The exigencies of life in the Middles Ages of the West—the constancy and severity of tribal and regional conflicts, the weakening of public authority, the vagueness and

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instability of ties of kinship—rendered necessary the development of new ties binding one person to another for the sake of the security and livelihood of each. The relationship of lord and vassal served this need at the upper levels of social being, and whatever its origins, in time transcended or at least supplanted the ancient distinction of noble and nonnoble. The most typical form of vassalage, the provision of military service in the defence of the lord and his interests, often required that the vassal was self-armed and self-appointed. This effectually restricted the lower classes from moving into this specific and valuable type of relationship. However, with the birth of an actual class in knightservice, older differences were either replaced or gradually displaced in significance. Knighthood emerged during the late eleventh century less a sub-class of the nobility than a distinct institution with its own code, rituals, symbols and drama. The effect of this emergence went beyond the introduction of a third player in the arena of elite power where the monarchy and the traditional landed aristocracy conversed. It opened up in a practical way the possibility of the sharing of political influence among both magnates and the anonymous members of the non-noble labouring order of society. Especially in the urban regions, the admittance of what Otto of Freising refers to as “young men of inferior condition, and workers engaged in low, even in manual trades”16 to various ranks within the knighthood, constituted a restructuring of traditional ruling offices, severing the exclusive and sacrosanct imperial alliance with the birth lineage of the secular and ecclesiastical nobility, and ultimately striking at the heart of the intensity and self-sufficiency of monarchical power. Knighthood created very early on its own unique socio-political space. It assumed responsibility for the functions which had been the preserve of the state form under Roman and Carolingian rule, and of which the feudal state, in its relatively weakened condition, could not claim any effective monopoly—namely, the military and administration of the country. As vassals of the sires, potentates and other wealthy lords, the knights came to adopt domestic roles in addition to military representation within the principalities or realms governed from the domain or fortresses. One can only tenuously distinguish between warrior service in defence of local dominions in cases of conflict and rivalry and the investment of authority over internal matters which encouraged economic exploitation through taxes, levies, fines and tolls. Their confluence was dangerous enough to provoke the “peace of God” institutions, an attempt by the monks and the prelates allied with them, through the administration of oaths, to regulate

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the use of force on the part of the knights and limit their encroachment onto the political and economic jurisdiction of the ecclesiastical order. Importantly, consonant with the ties forged from the peace of God emerged a renewed alliance between the clergy and lay nobility. By the eleventh century the process of dubbing knights was the domain of the Church. It involved benediction of the sword, prayers for arms or insignia within the liturgy, benediction upon the knight-to-be, and finally the striking of the sword on the knight’s body by the bishop. The Church also exercised its influence through the infusion of moral law in the codes of chivalry governing knightly conduct. The knights had become the warriors of God. Their participation in the crusades, in particular, exalted the social status of knighthood. The defence of Christendom depended upon the retaking of the Iberian peninsula from Islam, the fortification of Byzantium against the East, and the conquest and defence of the Holy land, tasks which no sovereign at the time was individually equipped to undertake. Even the construction of the Norman states in southern Italy would not have been possible without these religiously-sanctioned mercenaries, the indispensable supplements of state armies. Of course, the full extent of the socio-religious impact of this new feudal form of nobility in the high Middle Ages is difficult to establish. According to Marc Bloch, through their migrations the knights helped to maintain relations between societies geographically and culturally distanced, and essentially effectuated the dissemination of Occidental culture.17 This was itself possible only by reason of the fact that the knighthood, by virtue primarily of its Christianisation, codified regulation and heritability, had constituted itself a relatively homogenous group, counteracting the fractures inherent in the disparity with respect to descent, education and intellectual skills which traditionally would have lead to exclusivity and class differentiation. As a distinct class whose power lay in the aristocratic and ecclesiastical territories, it was not fortuitous that some knightly orders would assume the work of piety and responsibility for social welfare, as had the monastic orders before them. The milites Templi, founded in the Temple of Solomon in Jerusalem in 1118-1119, vowed poverty, celibacy and obedience in addition to armed battle against the enemies of the faith and peace. With its increasing wealth spurred by involvement in credit businesses in the second half of the twelfth century, the Templars concerned themselves with setting up hospitals for the care of the poor, pilgrims and the sick. The order of the Hospitallers has its birth in the brotherhoods founded in Jerusalem within this environment.18

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The transformation of military vassals into a distinct socio-economic and political class is but one illustrative example of the general process by which certain relations of power were put into effect in accordance with an immanent structure of differences. At the same time, it indicates the way in which the system of differentiations experienced its own metamorphosis in response to this process, and drove the production of entirely new relationships—for example, from limited, personal, military bonds to the provision of social welfare to the Christian public. Feudal law constituted the instrument making possible certain relationships of power under the operation of a particular schema of social ordering: those among lords and their vassals, the tenant-in-chiefs and their tenants, the manorial lords and their labouring peasants, the ecclesiastical lords and their monastic servants, the princes and their magnate vassals, the kings and their enfoeffed officials, and the concomitant relationships crossing these personal bonds, such as those between the king or prince and his subjects, the lord of a region or town and the members of the community, the bishop and his flock, and so on. The gradations in the feudal hierarchy became quite fine in its most developed stage. Historiography is limited by its sources in establishing with precision the range of differentiations which this rather expansive social system put into operation. In any case, it is quite clear that what mattered most with regard to the nature and quality of the individual’s life was less the exact position he or she held in this somewhat variable and at times abstract hierarchy than the role he or she performed within specific and relatively autonomous relationships of personal dependence with others. It is the conformity of such relationships with certain legal classes or categories which determined one’s freedoms, obligations, privileges and restrictions; that is, the application of an entire network of rights.

Levies, Privileges and Hereditability In its most restrictive signification the feudal contract was constituted of homage and the oath of fealty on the part of the vassal, and the grant of the fief and protection on the part of the lord. But these fundamental contractual terms did not exhaust the freedoms and obligations exercisable within the relationship, nor was this specific form of contract coexistent with the parameters of feudal right as a whole. We must consider feudal right from a perspective beyond its appearance as a simultaneously coercive and permissive instrument. Feudal right was concerned with that part of the social field regulating the flow of promises, oaths, bonds, exactions and services. It was not the regulation itself but the space within

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which regulation was considered permissible and efficacious, fulfilling certain needs and reifying the system of differentiations or orders. In this regard, the relationship of lord to vassal served as an important social model, and through its operative principles this model permeated, in spirit if not in form, other relationships whose structural conditions were not necessarily contractual nor even consistently definable. Let us work through an abstraction in order to suggest at least the outlines of this regulatory space we understand as feudal right; namely, Georges Duby’s threefold classification of feudal economic spheres: domestic lordship, land lordship and banal lordship.19 The classification is premised on the fact that the feudal seigneurial class comprised neither a homogenous group nor one whose members were situated in equivalent positions of authority to exploit the labour of others. The classical relationship of servitude offered a paradigm whose possibilities feudal mentality explored at the same time that the rigidity of the ancient social heirarchy was progressively enfeebled and the practices of freedom were being transformed. The idea of being the man of another man assumed a distinct form of dependence as domestic lordship, whether that of an individual or the entire population of a village community. Labour service continued to function as the fundamental condition of the relationship of domestic lordship, especially with respect to the farming of estates. However, this economy also entailed the derivation of revenue from the dependants. Whether as a supplement to the exaction of labour service, or in the case of peasants living from lands belonging to others as the primary requirement for the lord’s patronage and protection, an exaction of annual rent, a fine in the event of taking a spouse not from the lord’s household, and an inheritance tax were the fiscal levies burdening the serf’s obligations within its relationship of personal bondage. That the lord owned the body of the serf theoretically from its birth, and that the relationship of dependence bound the serf’s descendents, ensured a stable and relatively predictable supply of labour, to be sure. But it also created the impetus for a movement incongruous with the traditional modus operandi of servitude: as the imposition of taxes, fees and rents gradually embedded itself in practically all types of relationships of dependence, spurring an economy substantially autonomous and independent of the ownership of peasant slaves—which is to say that the circulation of wealth relied less on the master’s direct, physical use of human labour than on the existence of surplus from subsistence produce making possible the requisite payments—the value of serfs as invariable sources of revenue effected a change in the method of subjugation. The underlying ethic perhaps remained the same as it was in antiquity, one’s

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servile status being both inherent and inheritable. However, the process of subjugation no longer rested upon the obedience of a limited few to the idiosyncratic demands of the lord, but rather lay in the utilitarian process of subjecting the serf’s body to uses which guaranteed the greatest yield. This was not necessarily achieved by maintaining the serfs, who could number in the thousands, within the lord’s own demesne, nor with requiring of each of them an aspect of personal service to the lord’s needs. The process operated in multiple ways: expanding the scope of labour services to encompass military and artisan types of service in addition to agricultural labour; releasing dependents from compulsory labour and binding them instead with the responsibility over tenements; commuting compulsory labour services for money payments; increasing the sources of revenue, such as with the imposition of death duties and eventually that of tithes on produce. Whatever the case, the crucial mechanism of subjugation was the imposition of obligations, increasingly fiscal and thus more easily regulated, whose consistency in function if not in content lead to the development of contractual-style arrangements under the government of customs, variable as the latter were. From the twelfth century the decline in demesne farming and the increasing number of peasant tenements effected a new socio-legal composition of the feudal economy. Though land lordship was a distinct feature of Carolingian society it developed into a coherent system of legal relations only with the high feudal age. It was a system based on the coexistence of multiple interests in the same property, where the relationship between the lord and the tenant was mediated by a contract pertaining to the property rather than through the bare right of a master over the body and life of his man. The property at the core of this lordship relation might have been a grant of a parcel from the lord’s demesne, creating a tenement for the control and use of the tenant; but it need not have been. If the lesser man seeking a protector possessed his own lands he would be required ordinarily to surrender them, the terms of which depended upon the person’s position in the feudal order. The lands of the peasant were returned back to him charged with rents in money or in kind and with agricultural labour services. The person of higher status and perhaps warrior-like, after having done homage to his new lord, received back his possessions as the fief of a vassal.20 Again, whether the vassal or tenant was required to personally work the land in his possession, and whether he or a member of his family might need to furnish a restricted number of labour services, was determined by his position in the order. The privilege of receiving lands already subject to rents and services may have been expected by the nobler vassal. Obviously, the privileges

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associated with holding a fief were significantly grander than those associated with the modest villein tenement. The levies on the tenement included tithes upon the produce from the land holding, and a levy on the working capacities of the peasant family. The proportion of revenue from tithes must have increased proportionate to the proliferation of the villein tenement. We are told, for example, that in thirteenth and fourteenth century Occitania there was greater hostility to the wealthy clergy than the lay nobility; the manorial clergy assumed the responsibility of a “terrestrial power” and adopted a heavy-handed approach to the enforcement of the collection of tithes, to the extent that such enforcement became part and parcel of the strict policing and persecuting activities of the inquisitions.21 These two feudal economic spheres, domestic and land lordship, between them dominated most of the scope for exploitation through the rights of lordship and the concomitant obligations of dependence. They also provided the means by which the prerogatives of royal sovereignty, with the latter’s expanding dispersion, could be redistributed into numerous and variously-sized pockets of suzerainty whose rights were not necessarily directly derived from regal sources. Thus an entire body of non-dignitary and perhaps even nameless lords exercised the rights of a preferentially limited though relatively autonomous suzerainty—“plain knights”, “canons holding as ‘prebends’ a portion of the endowment of a cathedral church”, “monks put in charge of a country priory”, as well as representatives of the magnates,22 became the managers, tax collectors, police and dominial supervisors operating individually-small but cumulatively-significant seigniorial estates. These were the lords who lived directly from the land and its peasants. From a greater distance ruled the wealthy magnates—bishops, abbots, princes, counts and barons—whose domestic and land lordship tended to coincide with the vestiges of public authority. Their jurisdiction was essentially that of the bannum, a legacy of the early Medieval kings transformed into an institution maintaining private and elite enclaves of military and fiscal taxation. Restricted to a district surrounding a fortified centre, the lord of the castle assumed the responsibility for peace and justice over the entire territory, and thus for the levying of exactions or customs (consuetudines) to support this grand undertaking. To be a worker was to be dependent upon one’s local lord or lords, but also upon the lord of the castellany which one inhabited. This dual dependency was not neatly mapped; the overlapping jurisdiction certainly rendered the fiscal system less efficient, but it did not protect the worker from the burdens of multiple, distinct though non-exclusive economies. The customary nature

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of the exactions may have provided minimal restraint on their exploitative capacity, though this effect would have been largely undermined by the growth of machinery to enforce the banal rights: the employment of sergeants, reeves, provosts, foresters and market tax collectors—the ministeriales—ensured that any conflicts with the jurisdiction of local lords would be at least better controlled through their stationed service to the banal lord and their direct interest in the profits from scrupulous enforcement. What was perhaps the most valuable privilege that could be bestowed by a lord upon his vassal (and, of course, often of reciprocal benefit to the lord) came to be a permanent feature of the feudal landscape, one that played a significant role in transforming the function of the feudal relationship. The patrimonial character of feudal benefices may have arisen from the confrontation of the new bonds of fealty with the stillimportant ties of kinship, bringing together two families or lineage rather than merely individuals. For the vassal, the heritability of his position and rights provided security that his life-time commitment would not be dependent upon the frail contingency of his own existence, that his gains would not simply vanish should he fall in battle. For the lord’s part, the ability to recruit soldiers and labourers from the descendants of the deceased vassal provided the certainty of having a constant supply of men. This exchange of security to some extent remedied the inherent weakness associated with the personal nature of the feudal bond. In time it also lead to the personal relation of fealty being effectively replaced by a proprietary one. In the Carolingian empire the so-called fiefs de dignite, fiefs created from public offices delegated by the king—counties, marches and duchies—were considered honours rather than benefits; they differed from the latter in being temporary appointments rather than for life. With the later Carolingians, as the centralised authority of the crown grew more tenuous, it became increasingly difficult to enforce the revocability of these honorary offices, while the counts worked towards establishing themselves as potentates over their own territories. The new potentates, in turn, relied upon generations of local vassals to maintain and extend their territorial power as they acquired new estates, built castles and roads and became the protectors of the churches.23 The movement towards the heritability of fiefs was bound up with the transformation of royal offices into independent governing domains. At a time when to hold property was to possess political power, the conversion of royal privileges to proprietary rights was a natural process in which monarchs were forced to participate for the sake of their own military strength and internal political cohesion.

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In Milan in 1037 the German emperor Conrad II promulgated a constitution aimed at shoring up the rights of knights holding fiefs either from the public lands or the Church’s properties, against appropriation from the prelates of the Church and others. One of its measures was to make fiefs heritable along the male line of the vassal’s descendents.24 It was partly by reason of the heritable tenure of their fiefs that the order of the milites made the successful transition into the class of nobility. The heritability of feudal benefits effectively promoted the substitution of the oath of fealty, which was the currency of the bond of vassalage, with property rights, the new currency of the less personal and more differential relations between superiors and inferiors. With this new currency came new jurisdictions and new forms of adjudication. Fiefholding was increasingly accompanied by rights of legal jurisdiction, of both a civil and criminal nature, over peasant tenants and other subordinates tied in some way to the fief.25 At the same time, it became more important that conflicts between two or more parties each possessing some interest in the same parcel of land be adjudicated in an apparently more objective manner through the courts of law and formalised proceedings.

Private Jurisdictions and Judicial Mechanisms Because in feudal Europe engagement in war was a mode of production, society was organised in terms of the monopolisation of military activities on the part of kings and their milites and the imposition upon the populus of obligations to serve and support these expensive apparatuses of external violence. During the tenth century the sovereign hold on military activity gradually diminished. War was no longer fought at the frontier. With invasions from the north, south and east, and itinerant bands of pagan warriors exploiting the gaps left open, the royal armies found themselves increasingly inefficient and ineffective. The expanse of territory, the technological changes in warfare, the dissolution of the network of the king’s loyal men, and the decrease in the frequency of the royal military expeditions—these and other factors allowed the regional leaders, the dukes and counts, to usurp the authority for military campaigns in defence and enrichment of their Christian lands. By the same measure, the respite of peace was as critical to the survival of communities as the gains of war: order and justice ensured continuity in the functioning of the hierarchical system upon which the programme of conquest and defence depended. The organised use of force, turned inwards and shedding its arms, manifested itself through juridical

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authority. Just as each territorial prince and lesser lord had his own army of fighting men, each came to exercise judicial and policing powers in his own region. In feudal life war and justice were related in a number of senses. Militarily, the assembling of an armed force, traditionally the epitomic function of the early Medieval kings, gave the territorial lords a physical presence in the country, one that could be used to exploit its populations as much as to defend them. Politically, the ability to protect the populace and maintain a level of security of person and property invested such men with a certain authority and leadership within the community, capacities which in peacetime would convert to jurisdictional powers. Economically, possession of the spoils of war entailed domination of the means of production through land ownership, with the concomitant possession of rights of mastery over the labourers and peasants. Medieval representations of justice evoke solemn visions of the pervasive coupling of military strength and judicial authority. A tapestry from c.1085 in the Ville de Bayeux shows William, the duke of Normandy, sitting in judgement with a drawn sword.26 As knightly culture came to redefine even the religious ideals of the now decentralised Church, Romanesque art depicted Christ through images of victorious, warrior-like figures wielding the sword of justice. The image of the crucifix was a potent and singular symbol for the Crusades, not because it signified the suffering and sacrifice of the son of God—associations which would develop later—but because it depicted the crowned saviour in that immortalised moment of human triumph. It was these militant aspirations turned into Christian ideals to which the kings, princes and warrior monks clung in justification and support of their bloody pilgrimage towards the Holy Sepulcher. That judicial litigation was seen in terms of a private war, a continuation of the means of settling disputes on the battle field, is attested to by the forms which it assumed throughout the early Middle Ages and at least until the twelfth century. Germanic law did not assume an opposition between war and justice, or an identity between justice and peace; on the contrary, it assumed that law was a special, regulated way of conducting war between individuals and controlling acts of revenge.27

The fundamental characteristics of ancient Germanic law—a simple, binary opposition of two litigants and two potential results, a combative procedure, the trial as a form of test or contest, and judgement as to the party in the right rather than the truth of the dispute—survived in the judicial mechanisms of the oath, duel and ordeal that were part of feudal

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law. These judicial tests constituted social rituals through which the brutal fact of violence as untrammelled force was diverted, strained and reformulated into a symbolic combat carried out under defined rules and public supervision. However, what was perhaps the most important function of the judicial contest was bound up with the purpose of the community distancing itself from the always shifting and uncertain parameters of war. In a society in which the dispersion of political authority, the concentration of arms in private hands and competition for territory and wealth among and even within familial groups threatened to bring war into the most intimate folds of social bonds, it was a matter of survival that internal belligerence be contained. There had to be a dividing line between engagement in war, with its aims of human domination, territorial occupation and the usurpation of goods, and the resolution of tribal or kindred conflicts, the feuds. That line was the communal consensus achieved through law. In the anonymous heroic epic known as Raoul of Cambrai a trial by battle is staged between the noble knight Bernier, who has slain his lord Raoul after the latter sacked his home town killing his mother and kin, and Gautier, the nephew of Raoul who must avenge his uncle’s death. What is at stake in the trial is less a decisive victory and defeat for the individual litigants than the renunciation of revenge and the cessation of hostilities between the two warring clans represented by the litigants. Similarly, Bernier’s offer to give Gautier justice, through compensation including the surrender of land and pledging himself as vassal, seeks to bring an end to the cycle of vengeance without at all touching upon the rightness or truth of the disputants’ claims—as Bernier cries out, “For the love of God, Who was put on the cross, Will this war last forever.”28 The ordeal is a particular case in point because in this ritual, with its multiple manifestations (burning, submersion, scarring), was crystallised the ceremonial elements of communal justice, the fundamental battle of two opponents and the appeal to the judgement of God. Each element had its own properties and played its part in the transposition of force into consensus. First, the fight took place, as it were, on the body of the litigant undergoing the ordeal, whether the accused or the accuser. This representative figure in effect lost his identity as a singular combatant, and absorbed the war within him. To this end he had to be temporarily removed from the ordinary, human environment: Shaved, dressed in a shirt, for three days his diet and his whole rhythm of life is that of a priest, not a layman. He is solemnly blessed, stripped of talismans and amulets (the normal adjuncts of purely human conflict); he is liberally doused with holy water and transformed by long prayers of

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benediction into a prototype of the ancient righteous man delivered in times of tribulation.29

The corporeal nature of the contest remained, but in the ordeal it was more acutely focused on the physical signs whose appearance on the subject’s body would determine the legitimacy of the accuser’s claim or the accused’ defence. Second, by invoking the judgement of God the ordeal engineered a displacement of responsibility for social infractions or violations from the temporal sphere to the divine. It was a way of resolving a dispute to finality whilst at the same time minimising the intervention of human violence, revengeful motives and the opprobrium of the community. Of course, the decision-making process of God took its time and had its flexibility. There was space for human interpretation of the signs. But this task belonged to no single person, even if the temporal judge was entrusted with responsibility for supervising the regularity of the procedure; the public at large, as witness to the test, had ultimately to be satisfied that God’s judgement was clearly apparent in the result of the ordeal. Herein lay the consensus. Third, the ordeal was a ritualised form of war in its most dramatic guise. It was a demonstration that could be perceived by all concerned. Persons were required to physically administer the ordeal, to act through their own hands directly on the subject; the body under ordeal immediately experienced the torture, felt the pain and horror of its situation; the witnesses saw with their own eyes the procedure unfold before them, and their memories were burned with images of the corporal struggle and its consequences. It was a society which, more than any before it, sought to comprehend the divine mysteries in the mediation of human acts and human things: ceremonies, transactions, rites, symbols, miracles, effigies and adornments. The growth of seigneurial jurisdiction was the design or consequence of a number of interlaced movements characteristic of the broad feudal changes that took place around the tenth and early eleventh centuries. In its earliest phase there were the royal grants of property, privilege and immunity to churches, court officers and landowners. Jurisdiction was either formally provided for in the grants, or developed de facto from the exercise of authority implied by the holding of land and the accompanying privileges and immunities. There were also quite specific crown grants of territorial jurisdiction through the delegation of royal powers: the franchises and regalities. The delegates were clerical and secular private persons who need not necessarily have held property. At its most

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systematic level this took the form of grants of hundred districts on the part of English kings, especially during the twelfth and thirteenth centuries. Perhaps more pervasive and decisive for what we have referred to as the privatisation of juridical power was the jurisdiction which any lord of a manor could exercise over his tenants and other subordinates. As protective relationships were gradually transformed into relationships defined by the nature of the proprietary interests held by the parties, the ties of subjection inherited rights of justititia. Though territorial rather than personal, these rights of justice constituted additional powers for lords over their tenants and peasants: the right to sit in judgment to the exclusion of royal courts, the right to the profits of judicial exercise, and the ability to convert custom and usage into legal rules. Judicial litigation was a vital part of the feudal economy, of the circulation of wealth. In the first place, the delegation of jurisdiction into private hands derived originally from the process of granting ecclesiastical immunities. Churches, abbeys and monasteries had from the very early Middle Ages marked out the uniqueness of their temporal functions, their need to stand aloof from the business and affairs of the world, and they consequently claimed for themselves exemptions from earthly services and financial burdens. Of course, these royal exemptions were precisely the vehicle by which the Church moved swiftly to guarantee a privileged position in the feudal order, and in so doing rooted itself more firmly in the soil on which its peasants toiled and its vassals strove to defend. The effect of such immunities was to keep out the king’s reeves, both in relation to the collection of taxes and the holding of courts. The late Merovingian and early Carolingian rulers granted churches and monasteries immunities from public justice and the public treasury. A charter of immunity from the year 859 issued by the Carolingian king Charles II to the monastery of St Germain of Auxerre prevented the bishop of the diocese and all other episcopal ministers from presuming to exercise any lordship on the monastery’s properties, and the public judges and other judicial officers from entering to hear cases or collect taxes and payments or otherwise constrain the free and unfree men living upon monastic land. Moreover, the monastery was declared entitled to the profit of the lands that would otherwise be conceded to the public treasury, and its monks and merchants were exempted from paying tolls in the towns, markets, villages, estates, ports or gates.30 It was these episcopal types of jurisdictional rights that were transported to England with the Normans, where they were to become permanent possessions of the ruling classes. To be sure, before the conquest of 1066 Anglo-Saxon kings established formal (legislative) entitlements of judicial lordship, which could be held

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in two distinct capacities: lords were given responsibility for the behaviour of their commended men, through which they could also profit from the dues owed as a result of the men’s misbehaviour; and they shared in the fines paid to the royal judiciary from offences against the lords’ privileged properties.31 However, there was a tendency in pre-Norman England for lordships to be integrated into royal administration, rather than carving out their own private enclaves of immunity as in the contemporary Frankish world. In the second place, jurisdiction was essentially a fiscal privilege. Officially, the right to hold a court was coterminous with the rights to preside over the court and to the profits of judicial litigation, not the right to judge per se implied in the term “jurisdiction” (ius dicendi).32 At least in relation to disputants who were free, the lord (whether king, count or manorial master) rarely passed judgement. The old traditions of collective judgement survived to some extent with the practice of convoking an assembly of peers from the community to sit in judgement in each court. The composition of the assembly varied with the local customs; however, they were generally the free men, often of superior status to the litigants, and sometimes the social equals of the lord himself. The transition from the right to take judicial profits to possession of seigniorial jurisdiction involved no great leap of logic: it was a matter of the king’s officers having little interest in holding communal courts in places where the judicial fines were to go directly to the local lords who held their franchises or immunities over their territory. There were never any firm boundaries between royal jurisdiction and the various jurisdictions held by counts, bishops and the lords of castellanies. Even if the strength and reach of royal authority had waned around the turn of the millennia, monarchs remained, at least notionally, the supreme rulers of their countries. Of course, what it meant for monarchs to rule had undergone significant change. There was not a need for the new local chiefs to openly disavow that their secular authority was a delegation from the king. Their autonomy and independence were ensured by the relative weakness of royal administration, by the difficulty of communication across large and ruralised territory, and in their power to mobilise military forces. In an environment in which personal, contractual bonds of fidelity maintained a level of social cohesion and political order—bearing in mind that it was the early Medieval kings who promoted the oath of fidelity in relation to their subjects—the feudal king viewed the individual without a lord as more dangerous to the interests of the state than the proliferation of principalities whose distance meant that political power was exercised largely without royal scrutiny. An article

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from the Leges Henrici Primi requires that “every lord have with him those who are subject to his jurisdiction, so that he may hold them to justice for their crimes, or if necessary plead on their behalf.”33 In any case, to the extent that the king’s relationships with the effective territorial princes resembled general feudo-vassalic ties—of which there remains some ambiguity amongst the evidence—the regalian rights that these princes acquired could not but be tainted by the identification with private ownership: independent, hereditary and financially profitable. The distinction between royal and seigniorial justice was only crudely reflected in that of high and low justice. Certainly in France, there was much momentum over the course of time in relation to the exercise of particular forms of jurisdiction. The counts eventually lost their monopoly of major causes or high justice to the hundred courts and those holding certain immunities, franchises or regalities, which in turn lost their monopoly of minor causes or low justice to the mass of manorial lords that derived rents and services from rural tenements.34 In England the more systematic division of territory and the corresponding allocation of administrative spheres of operation (counties, hundreds, vills or townships, manors) resulted in the apportionment of judicial authority amongst the courts of each temporal, jurisdictional unit. Even here, however, the proliferation of royal grants of franchises and immunities, each with their own court, and the growing autonomy of the cities and boroughs, allowed a degree of slippage of high justice into the hands of unofficial and independent men. According to Pollock and Maitland the properly feudal jurisdiction was neither of a high order nor lucrative. In the jurisprudential theory of the thirteenth century it was considered to be generally restricted to civil jurisdiction over the free tenants: personal actions such as debt, detinue, trespass and covenant, actions for the recovery of freehold land, actions relating to customary or villein tenements, and general litigation on disputes arising from the relationship of lord and man.35 The collection of laws and customs from the late thirteenth century known as the Coutumes de Baeuvaisis categorised high justice as pertaining to all crimes for which the convicted criminal might lose his life, except for robbery; all other crimes were the province of low justice. The respective jurisdictions included the concomitant rights to the profits of judicial exercise, such as to the forfeited property of the convicted persons.36 Yet, it is at the point where the royal lawyers end their treatises that the confusion of overlapping and constantly shifting competencies and powers takes over. The distinction between civil and criminal laws was, before the thirteenth century, neither commonly espoused nor particularly relevant to the amorphous legal institutions of the feudal age. Whereas the death

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penalty was the quintessential prerogative of high justice, and thus generally within the exclusive authority of the king, borrowing on ancient Germanic law the hundred courts assumed the right to convict and punish with death individuals caught in the very act of committing a crime, in flagrante delicto. Presumably, the justification was that the immediacy and overt nature of the offensive act fundamentally put in question the existence of public order, for which the community as a whole had traditionally maintained a large degree of responsibility. Further, in matters concerning the behaviour of the lord’s men it was difficult “to prevent a lord from making his feudal court a police court.”37 Already in the time of Edgar (959-975) the holding of a hundred coincided with the exercise of policing and judicial powers in which both the life and possessions of the criminal were the objects of transaction. In the case of theft within the hundred any man might pursue the thief but it was the interests of the hundredman and the tithingmen that were at stake: Let them do justice on the thief…And let the ‘ceap-gild’ be paid to him who owns the cattle, and the rest be divided into two; half to the hundred, half to the lord, excepting men, and let the lord take possession of the men.38

Those granted immunities had always had the power of life and death over their serfs. In this sense, the lord’s authority over the unfree inhabitants of his lands could be viewed either as the exercise of justice as judicial lordship, or the effect of the master’s rights of ownership, in much the same way as those over his chattels. In practice, the two rationales for this juridical relationship of domination and subjugation merged into one, since justice was itself a thing, a bundle of proprietary rights, which could be possessed and transferred—hence, the fusion of private property and judicial power peculiar to feudal society.

Feudal Freedoms This historical juncture of the formation of subjective right in the West encourages us to rethink the foundation of the modern discourse on freedom and liberty, based as it is upon assumptions that developed in the succeeding centuries and crystallised in the early modern juridico-political philosophy of state. The assumptions may be reduced to three general propositions. First, that freedom is a state of being, an ontological condition of human existence. Second, that an individual’s capacity to exercise his will is directly proportional to the extent to which he is in the state or possession of freedom. Third, that liberty is linked to truth, a truth

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that is essential, ascertainable, necessary and conforms to universal laws. If instead we suspend these assumptions and treat the notion of freedom as the object of inquiry, we see more clearly that it has been the product of historical processes rather than their originary and ideal condition, that it was an effect of feudal power rather than an instrument of resistance to it. Far from dissolving the right of sovereignty feudalism encouraged its multiplication. The dispersion of sovereign power, first of all, lead to the emergence of numerous and competing sites of sovereignty, with each territorial prince imitating the absolute form of sovereign power in the shadow of which he had hitherto lived. However, beyond this reductive process of multiplication there existed a productive process. If every petty lord aspired to be sovereign over his castle, manor, abbey or household and their dependent inhabitants, to exercise the fiscal and judicial rights that pertained to the consecrated royal or imperial office, this was made possible by the fact that the once monopolised and indivisible rights could now be transferred; in fact, their value lay precisely in their being the object of grants and contractual transactions. With each transaction emerged a new locality of rights, a micro-sovereignty as it were. Thus, the economy of rights that sustained and regulated the feudal order also provided for, in the same movement, the realisation of particular freedoms—in effect, the release from feudal obligations—through which the strictures of dominial relationships were loosened and in some cases definitively severed. Feudal liberties were legally recognisable attributes of an individual, his personal possessions. The free person gained instrumental mastery of his body, appropriated himself, became sovereign over himself. But this did not leave him outside of the framework of power by which law gave effect to dominial practices. On the contrary, he was dependent upon the legal sanction institutionalising the grant or transfer of rights. His free status was a reflection of the relationship of mastery that gave meaning to freedom in its institutional sense, a product of the juridico-poilitical space we have analysed under the title of feudal right. The movement for the collective commutation of feudal serfs took place as early as the end of the eleventh century in imperial Italy and from the twelfth century on elsewhere. It was a process as much internal to feudalism as affected by external factors. There were the productive limitations of the manorial economy: the low productivity of labour due to the agrarian methods used and the lack of incentives to labour beyond subsistence levels, combined with the low yield obtainable from land that was over-cultivated by reason of a primitive system of crop rotation. At the same time, the ruling class’ growing needs for revenue exerted

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pressure on producers, and spawned the phenomenon of sub-infeudation, the multiplication of vassals in order to strengthen the military resources of lords. This in turn inflated the size of noble households and their retainers, the parasitic class that had to be supported from the surplus labour of the serf population.39 There was also the strain upon the feudal economy from demographic instability and the expansion across Europe. The migrations of aristocratic individuals and families from the tenth century on was accelerated during the twelfth and thirteenth centuries and coincided with the two major crusades and the conquests in Muslim Spain and the Byzantine East.40 Certainly, these military-religious ventures imposed great financial pressure upon feudal revenue, but they were also important catalysts of the migrations into new lands and the establishment of new territorial lordships and dependent towns along major routes. The knightly orders, primarily the Templars, Hospitallers and Teutonic knights, which played a critical role in facilitating the military power and the provision of social welfare for the missions, gained for themselves large areas of property and sometimes entire kingdoms, whether of those lands that they conquered or fiefdoms granted as rewards in their home lands. At the same time, countless other men—single knights, magnates and members of the clergy, even lesser individuals who distinguished themselves by taking part in the campaigns under the banner of the cross—became governors of villages, counties and regions, some creating familial dynasties from their new estates. This increased mobility, coupled with the burden imposed upon producers because of the inefficiency of the feudal system of production, lead to mass desertions of villeins from manors and villages. Some sought out protection in newer and freshly cultivated lands, other fled to the emerging market towns, and others still turned to vagabondage. When the capture of illegal immigrants largely failed, even with the cooperative agreements between lords for the exchange of fugitive serfs, the lords resorted to granting concessions, namely the reduction of servile obligations, as well as the conversion of feudal ties to contractual relationships in which monetary payments replaced personal services. Across Europe it was the local conditions that determined the extent to which labour services were commuted for contractual money payments. The most important of these conditions were the types of cultivation, the scarcity of labour, the existence of customs governing these relationships, and whether the destination of produce was the household or a market. It must also be remembered that this was a time of substantial population growth in Western Europe. The pressure of population upon the available

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land made it more difficult for the villein to manage his subsistence, and the consequent increasing supply of relatively inexpensive hired labour provided an economic incentive for commutation of servile labour.41 By the same token, on the part of the villein and the serf there was every reason to risk the dangers of abandoning the security of the manor and the rural village in search of new opportunities for prosperity. Seen at this macro level the movement of freedoms functioned on a continuum with other elements of the feudal order and not necessarily in opposition to them. Just as feudal law was put in the service of managing the system of differentiations—the feudal bond between lord and vassal and the manorial bond between master and serf—so too it operated to attenuate and release these bonds when they became untenable for a variety of social and economic reasons. It was not a matter of feudal right being displaced or threatened by the grant of freedoms, since these freedoms came into being through the very mechanism of individual, possessory rights. Far from a revolution against the feudal order, against its heirarchy, privilege and dominial forms, what took place was a matter of feudal institutions meeting their limitations precisely where pressure from changing socio-economic conditions revealed the inflexible nature of the fundamental feudal relationships. It is true that the gradual decline of feudal relations created possibilities for novel social groupings that were organised along different sociopolitical axes and through different types of relations. The urban and rural communities, the fraternities and guilds, and the new religious orders, notwithstanding their unique conditions of birth and development, can all be seen as part of the wave of mobility that essentially uprooted and deterritorialised the old, agrarian feudal order. However, it was often the case that the milieus of these new communities, in particular the towns that proliferated with vigour around the twelfth and thirteenth centuries, were firmly embedded in feudal structures and reproduced them through the organisation of the new urban institutions. Of course, there was no single and uniform pattern to the birth of Medieval towns. In Norman England and France, as well as northern Italy and parts of Germany, the larger towns emerged as cathedral cities or diocesan centres, where royal or imperial taxes were collected and the profits from the rural estates were concentrated, the focal points for religious and trading activities. The majority of English market towns were within the jurisdiction of feudal landowners, including that of the feudal monarch, whilst the larger towns tended to be under ecclesiastical control. Some towns developed around and within feudal garrisons, places where the population could speedily retreat for protection, and generally governed by an overlord. Other towns

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appear to have originated in settlements of merchants’ caravans, also places of protection but specifically for traders and handicraftsmen travelling between fairs, which may have purchased their freedom through royal privileges in return for money payments, or instead remained in the service of large feudal households. Did the movement of freedoms operate in opposition to privilege, special immunities and social inequality? We must recall, first of all, that rights appurtenant to feudal relations were effectively privileges and immunities, initially attached to royal or imperial offices. As such, they were special and personal rights, advantages enjoyed by particular recipients as a function of their role in private relationships with the sovereign or his delegated authority. It is difficult to gauge to what extent the communal insurrections that broke out during the twelfth century—in some places, for example Italy, almost simultaneously in the towns and countryside—were aimed at subverting the existence of these privileges and immunities, or whether they were more local and reactionary attacks on the nature and level of seigneurial exactions. In any case, the rural communities, formed from a federation of villages and hamlets, and the town communes, formed from groups of neighbours or viciniae, remained insular social environments which protected their members with their own privileges of association. A certain egalitarianism of membership coexisted with the development of a class structure. On the one hand, the fraternities were bound by an egalitarian oath in place of the oath of vassalage. This was consonant with the fact that they were voluntary associations formed for the purpose of serving some common good rather than a private interest. One of the early voluntary organisations was the campagna of Genoa, formed in the eleventh century for the purposes of the security and defence of its members, and renewed by oath every four years.42 Similarly, the commune was a communion of neighbours equally bound by a voluntary oath of fidelity to one another; hence named the coniuratio or communio. Some towns also encouraged emigration from the rural populations with the guarantee of automatic freedom. The urban franchises presented new inhabitants with, among other things, free status, free burghal tenure and protection from arbitrary feudal demands. On the other hand, the village community was generally dominated by a few of the wealthy rural families or their descendents, whilst the town commune was organised hierarchically with a group of boni homines at its head, the good or worthy men, the notables, who supplied the officials or functionaries of the community.43 In the early years of the commune ecclesiastical representation in certain cities, such as Pisa and Siena,

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extended from territorial influence in the form of feudal lordships, gave bishops a firm political and juridical base for government. Moreover, the Italian commune was internally regulated by a tripartite division of functions: the assembly or parlamentum (also consilium or colloquium), which consisted of heads of families; the government or regimen, which was constituted of higher magistrates or councillors with both executive and juridical powers, and whose members originally came from the more influential families, in some cases as a matter of hereditary privilege; and the specific offices that dealt with the day-to-day operations (revenue, estates, markets, notaries, communications), whose heads were nominated by the councillors.44 The early craft organisations that appeared in English towns from about the eleventh century initially purchased from the king, as the direct lord of their borough, the rights to a monopoly of trade. By the thirteenth century these organisations lost their monopoly, and the right to freedom, as a result of towns becoming dominated by gild merchants. Membership of a gild merchant entailed inter alia the right to buy and sell in the borough market free of tolls or customs. This right, otherwise known as “the freedom of the borough,” was limited to those who could afford to purchase the freedom, those who were admitted into a recognised craft organisation, or those with burgess status. This meant that in the larger towns the majority of inhabitants were not necessarily free. In any case, the towns that were granted self-government tended to be governed by the gild merchants whose members assumed political posts as aldermen and councillors. These councils, dominated as they were by mercantile interests, ruled relatively autonomously, though nominally by royal delegation.45 In practice, the theoretical freedom and equality of membership of the new communities, a phenomenon that was not uniform across all urban societies, and one that tended to favour those who either derived from already influential families or possessed the capacity for trading entrepreneurship, were underwritten by aristocratic and oligarchical organisational structures that permitted a certain efficacy and continuity of government from their feudal base.

The Relevance of Feudal Rights The point of having considered certain aspects of right in the feudal age, though in such a cursory and historically limited way, was to provide a genealogical focus on the practices and institutions through which the divine right of sovereignty came to be replaced by the feudal rights of

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individuals as the primary means for the exercise of political power. Of course, we do not mean by this that there was a clearly observable shift from one to the other, as though they belonged to the same conditions of possibility. In fact, the divine right of sovereignty was conceived in response to a different set of problems than that of feudal rights, even if, as we have surmised, the birth of feudal relations took place within the historical context of the ecclesiological manifestation of political power by which the relationship of fidelity assumed some importance. The idea of a shift is to put in question the continuity in meaning of philosophic notions—of right, justice, freedom—by referring them back to their functional capacities and environments at different historical points; but at the same time and in another sense, it is to allow time to be effaced, to see the present discursive practice of human rights in the circumstances of the past, to read a possible history of a present concern through certain changes in the conceptualisation, valorization and utility of rights at particular times in the past. We can perhaps reduce the legacy of feudal rights during the late Middle Ages and through to the Renaissance to two broad areas of influence.

Feudal rights are dominial The emergence of relationships of personal dependence, and the concentration of these relationships within the framework of the rural domain, demanded that customary law reflect the new relations of power. They sought out a juridical form to legitimise them, make them uniform, give them currency beyond the confines of private arrangements, invest them with legal authority so as to be recognised as permanent and inviolable, to imitate the sacral traits of sovereignty. Law gave effect to the association of political power with the holding of land, the grant of political office with possession of property. To hold property was to possess various rights, from the entitlement to levies, tolls or customs to the exercise of justice. The dominial character of feudal rights endured as a juridical legacy beyond the transformation of feudal societies in the late Middle Ages with the birth of a mercantile culture and a system of property rights largely shorn of personal, mutual obligations. We will encounter from the fourteenth century the development amongst both civilians and canonists of a discourse on the natural rights of individuals that is framed in terms of property rights and interpretations of the Roman law concept of dominium. Medieval writers who referred to ius dominium as both the right to govern

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and the right of ownership—an understanding unsympathetic to Classical Roman law—had already set up the rules of their discourse to include a theoretical assumption on the common origin or source of the right to rule and rights in private property. It was the realisation of this alliance within the feudal system that rendered the assumption more than a mere theoretical dilemma; for example, it was a very real stake in the disputes between the papalists and the mendicant religious orders over the issue of poverty and the Church’s accumulation of wealth. The importance of this discourse in medieval jurisprudence meant that it was bound to reappear in the work of later rights theorists, from the Spanish Scholastics in the sixteenth century to Grotius, Hobbes and Locke.

Feudal rights are liberties The feudal equation of rights with liberties (libertates) had a significant influence on later Medieval political theory: it suggested the central function of the concept of individual liberties in political government in terms of the rights of the governed. Roman law had treated freedom and servitude as existential facts. Slavery was sanctioned by natural law, and liberty was defined in terms of being under one’s own authority (sui iuris) as opposed to being under the jurisdiction of another (alieni iuris).46 By contrast, rights were conceived as immaterial things, the res incorporales, as a subset of the law of things within Gaius’ division of law into persons, things and actions. The Romans did not conflate ius with libertas because they belonged to distinct spheres of life. Roman law did not have as a constitutive purpose to establish and ensure the liberty of the individual, whilst liberty and slavery were not juridical products but conditions of birth or conquest that were merely recognised and given effect to by law. Because feudal society attenuated the freeslave dichotomy and encouraged an hierarchical network of relationships in which every individual had a place, feudal law dealt with liberties—the manifold privileges instrumental to formalising the differential relations and categorising one’s place in the order—as juridical constructs. In so doing they were given a relatively fixed and stable form, governed by a set of laws, even if the legal systems in some regions remained local and under the control of a small class of nobles. To be sure, these feudal liberties are not the same creature as the concept of liberty that the early modern jurists and political philosophers were later to write about. However, even when the early modern jurists prefer to model their notion of liberty on Roman concepts, however ill-fitting, rather than confess a debt to feudal right, the way in which they speak of liberty—as a

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fundamental individual right—remains possible only because feudalism established a connection between rights and liberties.

CHAPTER FOUR JURIDICAL SOVEREIGNTY AND PUBLIC LAW

“Therefore, by this compelling necessity of things and not less by the inspiration of Divine Providence, princes of nations were created through whom the license of crimes might be corrected.” — The Emperor Frederick II

The Sovereign Representation of Right If we were to question what it is that makes the rights of the individual authoritative, what allows them to function as instruments with legal effect and solemnity, it would have to be conceded that rights speak a certain truth—in effect, that they declare themselves through a true discourse that determines what human attributes and actions it is legitimate for the law to recognise and protect, to sanction and restrain. That we are the subjects of rights amounts to saying no more or less than that we are the subjects of a specific discourse on truth which takes law as its object. The task of this historical thesis, in one sense, is to chart the development of a theory of right that has set itself up as the primary mediator of political power in Western societies. More particularly, however, it is to understand how the theory of right, in enveloping itself within a discourse of truth, made its way towards a subjective doctrine on the rights of the individual that became the model for all political relations. Predictably, we focus here on the legal renaissance of the high Middle Ages. It was around the new interest in law that both secular and ecclesiastical governments, under the strain of different conditions, came to redefine their reason for being, and in so doing gave birth to the notion of the law-centred sovereign. We are familiar with the re-emergence of the teaching and practice of Roman law in the twelfth century, facilitated by the renewed interest in Justinian’s compilation of Roman legal rules, juristic opinions and imperial edicts. These events initiated a tradition of legal thought governed by the systematic arrangement of legal principles and the interpretation of the legal text. We are also familiar with the struggles for political hegemony between the empire and the papacy at about the same time, and

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how in the shadows of this monumental conflict many other political structures—the monarchies, principalities and city republics—found the space for expression of their autonomy and self-styled sovereignty. It is then not surprising that the widespread rebirth of Roman law had a significant role to play in the investiture and imperial-papal conflicts, as well as in the legitimation of the authority of the monarchical and civic institutions that took shape from the late eleventh and twelfth centuries. If we concern ourselves with analysing the function of jurisprudence in the significant political movements of the late Middle Ages, it is especially in order to reveal the workings of a discourse through which political power came to be represented by law. This is not to accept sovereign power as the obvious manifestation of the right or legal prerogative of the ruler. Rather, we are interested precisely in the construction of sovereignty as rulership by legal right, as juridical sovereignty, both in terms of how it came to replace the early Medieval doctrine of sovereignty by divine right, and what types of application or instrumental uses it had in grounding a particular conception of political power and particular socio-political institutions. It is true that the juridical form of sovereign power in the Middle Ages was based essentially upon a deductive mechanism, the right to appropriate wealth, taxes and levies, labour and blood. Power in this instance was essentially a right of seizure: of things, time, bodies and ultimately life itself; it culminated in the privilege to seize hold of life in order to suppress it.1

However, we should go further, and attempt to analyse under what pretext this right of seizure was considered acceptable, desirable or even necessary. In the interstices of the exercise of this power, whenever its dominial effects ran the risk of being unmasked and becoming apparent, where there was a need to justify its source and legitimacy, a discourse on the juridical basis and function of sovereign power was in operation, becoming ever more sophisticated with the development of civil and canon jurisprudence. The process by which liturgical or Christ-centred rulership came to be replaced by law-centred rulership spanned many centuries. The two ideologies were rarely in direct conflict; instead, they coexisted for a time, and their merger was ensured by the fact that jurisprudence provided imagery and concepts with political relevance initially through the mediation of theology. In the jurisprudential and political literature of the twelfth and thirteenth centuries the idea of the prince’s obligation to protect the law is expressed through ecclesiastical metaphors that speak of

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the sacred and primordial right to govern and legislate—for example, in the Liber augustalis (or Constitutions of Melfi), promulgated by Frederick II in 1231, the origin and protection of justice are said to reside in the same imperial person, as the Father and Son are but one, expressed in the formula pater et filius Iustitae.2 Somewhat paradoxically, the transition from liturgical to juridical sovereignty was initiated by the Church: the reform movement from the mid-eleventh century, centred on the figure of Gregory VII, stripped secular monarchs of their sacred robes and turned to legal science to support the redefinition of the Church’s temporal role. The tripartite order of Christian society was dismantled at the same time that the growth of towns, the replacement of feudal arrangements with labour contracts and the clericalisation of the Church put in motion a shift in dominance from rural to urban existence. Just as townsmen joined together in fraternities and communities for the purposes of selfprotection, governance and commerce, small groups of clergymen were formed, not on the monastic model, but in an attempt to live in a state of moral purity, to distance themselves from the worldly burdens, corruption and sin that festered within the feudal Church. The papal alliance with monasticism was gradually severed in favour of cathedral churches, bishops and the emergent communities of ordained canons. For a Church that was in the throes of its own internal inquisition and structural renovation, it was both a symbolic and propitious move to differentiate itself from the lay world of princes, warriors and labourers, to revert to the theologically-rich binary opposition of the clerical and secular estates.3 With this division came the gradual but certain collapse of the Christological view of kingship. The Church reforms were characterised by two related, and at times conflictual, movements. On the one hand, there was a separation of the powers and offices associated with the temporal and spiritual realms. Quite early in the reform process the Roman curia accepted the premise contained in the ideas of the reforming Cardinal Humbert that political independence was the necessary precondition for moral reform of the Church.4 On the other hand, there was an intensification of the Church’s role in pastoral government, including government on worldly or temporal affairs. These movements may be said to have begun even before conflict over the practice of lay investiture incited what we know as the investiture contest. Pope Leo IX laid the foundations for the institutional and legal reform of the Church during the eleventh century, firstly, by holding synods and councils of local bishops and clergy outside of Rome, both as an attempt to reinforce ecclesiastical law in regions otherwise untouched by papal presence and to address local concerns in his legislation, and

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secondly, in the affirmation of past conciliar decrees during his councils.5 The canons of the Council of Rheims of 1049 focus on establishing a clerical code of conduct by dealing with widespread, corrupting practices such as simony and the exaction of dues or fees for administering sacraments; moreover, they go further to distinguish clerical and lay activities, prohibiting clerics from bearing arms or following worldly occupations, and legislate for the lay population in areas such as usury, the theft or fraud of the poor, and incest.6 The Church’s increased governance of the lay population may have been a direct consequence of the latter’s increased activity in the public life of the Church, a prominent feature of the movement towards the vita apostolica during the age of reform.7 In any case, the increased governance stimulated the development of canon law and encouraged the process of its unification and harmonisation. The unique position of the Church during the high Middles Ages, as the only political entity in Western Europe to claim a universal position, necessitated the production of authoritative texts of canon law, a law that would itself be universal, in the sense of having relevance to the entire societas christiana. It became important for the reform movement that liturgical activity be regulated and unified, that proper canons be distinguished from unlawful religious practices, especially those proliferating among the lay population. A subject of particular concern to the canonists was the lay practice of confession. Among Gregory VII’s synodal decrees in the years 1078 and 1080 are those on the topic of true and false penitentials. The topic was also dealt with by a contemporary tract titled De vera et falsa penitentia, attributed to St Augustine and given currency by Gratian.8 In defining the priestly power to bind and to loose as a judicial power (potestas judiciaria), the tract argues that the priest, as judge, can demand unquestioned obedience from the penitent as prerequisite for the latter’s salvation, and that the priest’s exercise of judgment upon the penitent is essentially that of God Himself.9 In effect, only sacerdotal confession can be considered a sacrament and provide full remission of sins; the layman practising confession, lacking the requisite judicial capacity, can at most deem the penitent worthy of pardon. If juridical concepts were used to consolidate the Church’s control of liturgical and sacramental activity it was because the language of law had penetrated ecclesiology at a time when the Church was preoccupied with jurisdictional issues. In the early days of the reform movement Church leaders and canon lawyers strove to establish a theory of papal authority through the distinction of regnum and sacerdotium. Both Cardinals Peter Damian and Humbert, notwithstanding their dispute on the nature and

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effects of simony and their different views on the relationship between the two powers, utilised the distinction in their arguments on the clerical role in papal elections. Humbert, whose thesis on the exclusively canonical election of all bishops was taken up by later representatives of the reforming party, posited the supremacy of the priesthood over royalty through the metaphor of the hierarchical relationship of the soul to the body, the former representing sacerdotium and the latter regnum.10 Gregory VII actually used the authority of the Gelasian text on the coexistence of the spiritual and temporal powers to emphasise the distinction between the ecclesiastical and secular spheres, strategically omitting reference to Gelasius’ thesis on the divine origin of the imperial office, instead elevating the position of the Roman apostolic see at the expense of secular government.11 Of course, the recurring reference to the “two swords” doctrine, and the intellectual attempts to qualify it with a theoretically sound distinction, betray a more profound tendency on the part of the religious reformers. Because the Church of the eleventh and twelfth centuries manifested the twofold ambition of freeing itself from the established bonds to imperial power and expanding its pastoral role in the life of Christian society, its method was to establish the basis of its secular supremacy precisely through recognition of its unique spiritual authority. In so doing, it overturned the theocratic doctrine of divine right, which had ascribed divine legitimacy to the notion of imperial rule (and later royal rule) without disturbing the historical relationship between the secular ruler and the ecclesiastics. Needless to say, we are not interested here in the actual discussions and disputes on the subject of regnum and sacerdotium, nor specifically in the detail of the political events that gave birth to and sustained the disputes. What we are concerned with is the emergence of a discourse on the juridification of political power that was given momentum and direction by the Church as a consequence of the reform movement. The new perspective on the spiritual nature of authority, far from resting on a metaphysical plateau accessible through speculative, theological meditation, was presented through a theory of constitutional law. Anselm of Lucca’s collectio canonum describes the Church as operating for truth through the machinery of legal relationships and norms, a process making possible the channelling of grace. Spiritus and lex were self-serving axioms in reform doctrine, expressing the notion of Petrine supremacy as an eternal principle.12 The importance of ecclesiastical law for the pontificate of Gregory VII, more than mere ideology in the service of the investiture dispute, is demonstrated in the papal judgments, decrees and letters collected in his

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Register, and in the legislative clauses of the Dictatus papae. These texts provided legal force to well established principles of the canonical tradition and invested papal decisions with the authority of canon law. It must be remembered that Gregory’s hierocratic ideology was first and foremost concerned with establishing papal primacy within the Church, a necessary condition for control of episcopal elections and the extension of its jurisdiction into secular affairs. “He acted on the principle that the magisterium and its auctoritas gave the papacy judicial rights over the rest of the Church.”13 The numerous addresses, summons and instructions to regional bishops that appear in the Register,14 on a large and miscellaneous range of quite specific matters of ecclesiastical rules, pastoral practices and a variety of disputes, attest to the expansive and absorbing nature of the day-to-day functioning of the papacy under Gregory’s rule. Similarly, while the first two clauses of the Dictatus papae seem directed against imperial rule—they declare that the Roman Church was founded by God alone, and that the Roman pontiff alone is rightly to be called universal— the remainder are largely concerned with papal rights and privileges in purely ecclesiastical affairs. Amongst other things, they grant the pope exclusive authority to enact new laws and declare chapters or books canonical, invest his legates with precedence over other bishops in council, and arrogate to the papal see jurisdiction over the more important cases of every church.15 The expansion of the legal responsibilities of the Roman curia during Gregory’s pontificate was a catalyst for the relatively rapid development of the administrative, legislative and judicial machinery of the papacy. By the mid-twelfth century, even with the compromise solution to the investiture contest that emerged from the Concordat of Worms in 1122, and the renewed focus on the spiritual function of the Church, the unprecedented rise in the significance of the see of Rome for the administration of the Church and the concomitant geopolitical growth in its jurisdiction over central Italy placed pressure on the papacy to manage its temporal government by means of the technology of law. It was to the study of Roman law that clerical scholars turned in order to derive the tools, techniques and jurisprudential concepts for fashioning canon law as a legal science. It is not surprising that Gratian commenced his influential collection of canon law, the Decretum or Concordia discordantium canonum, with a treatise on the sources of law, the Tractatus de legibus. Quite apart from the overt objective of harmonising conflicting canons, the work manifests the attempt to properly situate his vision of the Church as a juridical government within the canonic tradition. The principal vehicle Gratian used was the theory of legislative

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power, a theory attributing legislative power—and, in effect, supreme judicial power—exclusively to the pope. Without making any direct reference to Justinian’s compilation, and perhaps as a result of the lack of any such authority in earlier canon law texts, the Decretum borrows from Roman law the idea of the right of making law (ius condendi legem), an idea that served as the foundation for his unequivocal dicta on papal primacy. It is likely that his theory of legislative power was conceived in response to the consequences of the crisis of 1111, when the legislative act of Pope Pascal II in granting Henry V the right of investiture—contrary to the precedents set by Gregory VII and Urban II, amongst others—and the subsequent repudiation of this concession in the council of March 1112, put in focus the subject of the limitation of the papal power to legislate.16 Notwithstanding the inherent conceptual problems in Gratian’s constitutional theory, in particular, the difficulty in portraying the episcopate as a governmental authority while vesting all juridical power in the papal office, the idea of the concentration of legislative competence in that office was perpetuated in the writings of future popes and canon lawyers and in the practices of the curia. During the pontificate of Celestine II, and perhaps even earlier though less explicitly, the Roman chancery began to include within its grants of privilege the reservation salva sedis apostolicae auctoritate (excepting the authority of the apostolic seat), promoting the recognition of papal legislative power.17 In any case, with Gratian the significance of law for Church administration penetrated the entire ecclesiastical structure, at all levels of the hierarchy. Though some of the later commentators on Gratian would draw a distinction between the power of jurisdiction and the power of order exercised by members of the clergy, Gratian treated these powers effectively as consubstantial.18 It was recognised, of course, that members higher up in the hierarchy, such as bishops, had the power to perform sacraments that others did not possess, and therefore exercised greater jurisdiction. However, Gratian held that sacerdotal power was at once sacramental and jurisdictional: the performing of sacraments were themselves juridical acts, the ultimate expression of sacerdotal government. By the same token, enveloping ecclesiastical practices within the broad concept of jurisdiction made possible, and even necessary, the expansion of the meaning of ecclesia to encompass the government of the Christian population. Stephanus Tornacensis, a glossator on the Decretum, argued in his Summa that the ambit of ecclesia includes both the religious and civil government of Christian peoples—duo principatus duplex ordo iurisdictionis19—an idea that, whilst affirming the distinction of the secular and spiritual modes of human government, conjoined the two with a single

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divine source of authority and a unitary, complete jurisdiction or potestas. In canon jurisprudence from the mid twelfth century, pontifical authority, as a spiritual power, was considered to be superior to imperial power and every princeps regnorum in a very practical juridico-political sense—to pontifical authority was attributed the powers of excommunication, to detach subjects from bonds of obedience and release them from the oath of fealty, to transfer or assign emperors and kings, crowns and territories, and to require princes to defend the Church in order to secure the order and peace of Christian society.20 The move from liturgical to juridical sovereignty found parallel currents within the discourses on ecclesiastical and secular governments. The title of vicarius Christi was perhaps first ascribed to the pope around the mid-twelfth century by Saint Bernard of Clairvaux in his De Consideratione.21 This image had a representational force, not merely through reifying the theory of papal monarchy but also in emphasising the distinction between papal and secular authority. With the Quanto personam of Innocent III the idea that the pope, as Christ’s vicar on earth, exercised plenitudo potestatis, the fullness of power, could be deduced directly from the biblical premise that the authority of the papal office was derived from the act of Christ granting St Peter lordship over the Church, thereby establishing a hierarchical order of ecclesiastical government and the seat of divine authority on earth.22 This ensemble of Christological themes found its most developed and rhetorical expression in the commentary of Hostiensis on the Quanto personam. In the spirit of thirteenth century glossography, Hostiensis manipulated older ideas to provide greater clarity and coherency to Innocent’s otherwise ambiguous claims to supremacy, albeit at the expense of indifference to the actual historical development of the papacy. His apostolic vision witnessed the pope fulfilling an unmediated divine mandate through participation in the divine will, a notion that extended the interpretation of canonical sources—particularly with the corollary claim of the divine nature of canon law—and became a representative principle of pontifical authority and legislative prerogatives. During the same period, the civil jurists were interpreting the more limited concepts and language of the Corpus iuris civilis to express the nature of sovereignty. The imperial ruler, who since late antiquity was portrayed as the temporal representation of the divine being (deus in terris), was increasingly represented as lex animata, the living law. This image was, to greater or lesser degrees, supported by the Roman maxims, “what pleases the prince has the force of law” (quod principi placuit, legis habet vigorem),23 “the prince possesses all laws within his breast”

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(Princeps habet omnia iura in scrinio pectoris), “the prince is not bound by the laws” (princeps legibus solutus est),24 and “his will is held to be reason” (est pro ratione voluntas). Though each phrase held its own connotations and inspired its own particular uses within the jurisprudence of the time, each contributed to the mystical association of law and justice with the will of the ruler, an association that continued to be valorised even as juristic thinking moved towards theorising the limitations on the prince’s power. The concept of the prince as animate or living justice carried with it the heritage of theological thought, though in place of the king as the manifestation of Christ and as acting through received grace stood the sacralised figure of Iustitia, the eternal judge on earth. As the representation of justice, the prince had an intermediate existence between the divine and the temporal—or to be more precise, he mediated the judicial presence of God with the earthly government of men. In the words of Frederick II, the princes of nations were “judges of life and death for mankind” who acted as “executors in some way of Divine Providence.”25 It was possible for the theologians and jurists of the twelfth and thirteenth centuries to marry the idea of the prince as legibus solutus with the immortal, deified representation of justice because, as Kantorowicz has suggested, the two forces were given life in a persona mixta, the “hypostasis of an immortal Idea.”26 This is clearly the model of the juridical prince that appears in the Policraticus, where John of Salisbury describes the private will of the prince as having the force of judgment and law precisely because its public determination may not be inconsistent with the common utility and the design of equity.27

Textual Practices During the twelfth and thirteenth centuries, as monarchical states were in the process of establishing themselves on the model of the centralised control of economic, military and judicial organs, the idea of the prince as the embodiment of justice found its most perspicacious expression in the sovereign’s monopoly on the administration of justice and the power to grant rights. At the same time, in certain parts of Europe, notably northern Italy, the larger cities that had developed into semi-autonomous political communities sought a stable juridical base in legislation reflecting the communal form of self-government. Thus, across diverse lands and political structures we witness the proliferation of constitutions, statutes, and charters of rights, and the general reliance upon written legal forms, for the maintenance of political power. We cannot, however, appreciate the significance of this set of phenomena without attempting to sketch out

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the more obvious features of the historical context from which these legal instruments emerged and became common-place within a relatively short period of time. Indeed, the history of the legal text and of textual practices is much too involved and heterogeneous to analyse it in its entirety, let alone to include a discussion in a study whose focus is the function of quite specific legal instruments within a particular historical time frame. It suffices for our purposes to delineate, among the myriad of uses of the technology of writing, those that provided a fertile environment for the creation of textual instruments declaring rights for individuals, groups and communities. At the fore, a number of interrelated historical questions present themselves: how did the text come to be the principle tool for recording or manifesting the grant and existence of rights; what was the nature of authority accorded to the text of rights; and, by which process did the text come to be regarded as revealing documentary proof? These questions each play a part in charting the development of the relationship of legal writing to truth, and how this relationship succeeded earlier, predominantly religious conceptions of law. Let us not, however, assume that the development was necessarily linked to the progress of rationality, as the shift from an irrational oral system of law to a rational written system. First, the relationship of writing to truth emerged not as an intentional process of rationalisation but as a contingency with respect to the transformation of political structures and legal mechanisms around the eleventh and twelfth centuries. Second, historians of the Medieval text have established that the technology of writing did not at any particular point in time supplant the oral traditions in law; they co-existed in various relationships over the course of many centuries during which orality gradually came to assume an increasingly narrow, specialised function. Third, the concept of truth has not been a static and constant marker of reason throughout history; it itself underwent change as it increasingly came to be associated with the legal text, while the latter was invested with new significance by reason of its practical uses in documentation and verification. We have surmised that the early Medieval Church served as a vessel for the transmission of the culture of Classical antiquity into the high and late Middle Ages, and in so doing reinvigorated the imperial form and ideal in the west, most notably with the Carolingian state. In its early phase this involved the transformation of speech through the latinisation of the countryside, a consequence of its conversion of the rural masses around the fourth and fifth centuries.28 In later phases the clerical influence in political processes, through direct participation in the administration of

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the early Medieval kingdoms and the Church’s procedural competence in legislating and governing its members, ensured that its textual tools would be borrowed and emulated in the juridical reconstruction of secular power. More importantly, it was the Church’s interest in the lex Romana, as an instrument for the performance of political decision-making and the judicial function, that carried the textual legal tradition with some continuity into the twelfth century and expanded its relevance beyond the confine of organised bureaucracy. Notwithstanding the widespread use of cartae and diplomas in the oral cultures of the early Middle Ages, there was not a strong textual presence in law, simply because these written instruments functioned within an environment of legal uncertainty that looked to the public performance of legal rituals for social stability. Judicial procedures were often tied up with the ratification of documents and the hearing of disputes as to their legitimacy, deeds were often publicly concluded with the attestation of witnesses, and the inscription of documents in the public registers entailed a public reading in the Curia.29 Is it then not surprising that in the early Middle Ages the terms lex and consuetudo tended to be used interchangeably, and certainly without philological precision. It was only in the feudal age that consuetudo came to adopt a distinctive meaning through its reference in diplomas of immunity, as the jurisdiction and concomitant rights of income that were possessed and capable of transfer. Around the same time, the term lex solidified semantically as the written form of law. The relationship between law and custom became problematic as a consequence of both the Church reform movement and the revival of Roman law. In the first instance, when the ecclesiastic reformers sought to ban practices that had been sanctioned by long usage and fermented as custom, they opposed custom with the concept of lex, interpreted as the written law of legislation.30 Gregory VII denigrated custom to the extent that it was not sufficient to transform unjust conduct into just conduct; whereas law represented truth and thus was intrinsically just.31 This ideological premise fell in line with the reformers’ faith in papal legislation as the principal vehicle for translating abstract principle into governmental action, as we have suggested above. In the second instance, the rediscovery of Justinian’s Digest forced jurists to treat legislation and customary law as distinct sources, inevitably raising the problem of their potential conflict. From passages in the Digest ascribing supreme legislative competence over the Roman state to the emperor, some Medieval jurists reasoned that law, being derived from the will of the prince, abrogated all contradictory customs, while others sought a more

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nuanced relationship that considered the temporal situation of the conflicting laws as well as their source: for example, Azo argued for the invalidity of a custom that preceded a contrary law, but the ability of a subsequent custom to abrogate earlier written law.32 In any case, the tension between the clear need to preserve extant customs—given that up to and including the thirteenth century it was customary law that governed the greater part of European populations, even in territories with a strong monarchical presence—and the monarch’s authority to promulgate laws binding upon all of his subjects, tended towards partial resolution in the fact that, for the most part, law and custom performed different functions. Further, from the end of the tenth century customary laws began being committed to writing. This was done less in order to preserve customs that might otherwise be forgotten than to elevate customary law to the same level of authoritativeness as written law.33 The difference between custom and law was never one of intrinsic qualities or values; it was primarily a product of two sets of juridical forces. The first was the fact that the Church inherited Roman jurisprudence for its clerical needs and put it in the service of regulating a bureaucratic organisation that had never lost touch with the written word. The second involved the proliferation and juxtaposition of different sources of laws: the customs, city statutes and royal ordinances could all apply to the same subjects within the same territory at the one time, and their co-existence necessitated a tiered structure of legal norms. In the histories of the twelfth century literary renaissance the role of the text is often overshadowed by the interest in the growth of branches of knowledge and hermeneutical techniques. Yet, they are part of the same evolution: the systems of knowledge, which included both the collection of statements, facts and principles and their means of interpretation, could only be conceived as distinct bodies of knowledge—having in common an object of inquiry, modes of classification of information, ways of reading, and so on—to the extent that they were presented in a textual format, with the properties of permanence, stability, immutability and the capability for reproduction. The growth of legal texts coincided with the new interest in organising knowledge and the growing importance of the dialectical method of reasoning because they were interdependent movements of the same intellectual climate. The attempt to systematise canon law through the medium of complete and autonomous collections, from Gratian’s Decretum and Bernard of Pavia’s Breviarium extravagantium to the Compilatio of Honorius III, was an integral part of this climate. The rules of dialectics that were being formulated in the schools of theology and refined in the writings of Abelard found parallel uses by canon lawyers

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such as Ivo of Chartres and Burchard of Worms.34 The reforming Church had a need for authoritative and reliable pronouncements of canonic principles. Interpretative techniques were formulated to deal with the problems associated with the continual application of canon law to everyday experience across multiple jurisdictions: the rule of ratio temporis was used to determine whether an earlier law creating a legal precedent should be abrogated in relation to a present problem; that of ratio loci in the event that a rule peculiar to a particular locality contravened a general norm; the ratio significationis to determine whether apparently contradictory norms could be reconciled in logic; and the ratio dispensationis to deal with contradictory norms as statements of a rule and its exception.35 In the legal environment of the twelfth and thirteenth centuries the demand for authoritative texts prevailed over the dependence upon historical claim and guided the formulation of normative content. In this sense, the truth in canon law lay not merely in the substance of the decretals and canons themselves but in the actual text embodying them— through the inspired form of its compilation, its mode of organisation, and the careful rendering to ensure consistency, logic and harmony with divine law. Nor should it be overlooked that with its erudition and textual scholarship canon law offered a uniform and reliable alternative to the multitude of secular jurisdictions of customs, and more importantly, bestowed legitimacy and credibility to the judicial procedures of the appeal institutions within the Church, especially those of the papal office. This assumed greater importance as ecclesiastical courts after 1100 increasingly came to sit in judgment on matters of private law, and as a consequence of the institutionalisation of legal literacy the courts’ “competence came to depend less on the status of the defendants than on the ratio materiae.”36 Legal science, no less than any other Medieval science, was conceived as a reflection of the tension between the terrestrial and transient condition of humanity and its striving for the transcendental perfection of Heaven. The Medieval theologians and emerging philosophers of the twelfth century were largely consumed with the primordial and didactic relationship between esse (being) and existentia (existence)—between the realisation of the idea of God and the error and injustice besetting the existential world.37 This religious tension impregnated jurisprudence with the belief that human law needed to imitate divine justice in order to achieve its own perfection. In this vein, the Bolognese jurist Irnerius argued that the power lay with the emperor, as lex animata in terris (living law on earth), to transform aequitas—a principle observable in human

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relations—into iustitia through the promulgation of laws.38 It was ideas of this nature that lead jurists to associate divine authority and truth with the imperial ius scriptum, commencing with the Roman laws compiled by the emperor Justinian. Gratian’s systematic treatment of laws, purposed as it was at elaborating a Christian thesis of juridical consciousness, delved back before the Romano-Christian Empire to the biblical testament of the significance of law and text. The enactment of law, it declares, began with the prescriptions that the Lord gave to Moses. Among the Hebrew people, then, “Moses was the first of all those who set forth the divine ordinances in the sacred Scriptures.” Following Moses, King Phoroneus was the first to issue ordinances and decisions, Mercury Trismegistus the first to propound ordinances for the Egyptians, Solon the first to give ordinances to the Athenians, Lycurgus the first to make laws by the authority of Apollo for the Lacedaemonians, and Numa Pompilius, who succeeded Romulus in the kingship, the first to decree ordinances for the Romans. The genealogy continues with the Roman people creating the Decemvirs to compose the Twelve Tables, right through to the Code drawn up by the Augustus Theodosius II.39 In effect, Gratian propounded a prehistory of juridical enactment that privileged a continuous historical thread of authority based upon the original source of divine textual authority in the Scriptures. Moreover, he shored up the edifice of this reasoning by approving the statements of Augustine in his letters to Jerome that “[n]o falsehood is found in the Canonical Scriptures” and “[a]ny falsehood in the Canonical Scriptures would rob them of all authority.”40 This concern with the tripartite relationship between authority, truth and the written text renders explicable many of the other principles in the Treatise, particularly the Isidorian precept that custom and practice should yield to authority, with the term “authority” being glossed as meaning written authority, and the Augustinian statement that judgment cannot be passed on an ordinance once it has been enacted.41

Royal Power and the Legal Text In the secular world the technology of writing served as the link between the sovereign representation of right and the logistical demands of monarchical power. It was the functional mediator between jurisprudence and the operation of royal government. The centralisation of administration and justice was perhaps the most decisive step in the reconstruction of the state form during the late Middle Ages. The Anglo-Norman kingdom achieved statehood very early on with both the assistance of an existing

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rich tradition of royal bureaucracy and written law, and the initiation of its own juridico-political reforms. William, the Duke of Normandy, entered England at a time when the forces of political disintegration were relenting. The cessation of external invasions, the revival of towns and trade, and population growth encouraged the greater circulation of money and organised taxation, conditions which favoured the feudal monarch through increased revenues and by providing incentive for the conversion of feudal contracts to official salaried posts. William responded to these new conditions by consolidating royal jurisdiction. First, he instituted a new aristocracy, one that was fairly homogenous (most members of this governing class were imported from Normandy) and more personally tied to the royal office, whether by kinship, intermarriage or vassalage. Second, the Norman king broadened the functional scope of the Anglo-Saxon royal council, the curia regis, such that it became a court as well as a council, a predecessor of the king’s court under the later judicial reforms of Henry II.42 Third, by making appointments, especially ecclesiastical ones, from continental Europeans, the Normans allowed Old English to be replaced gradually by Latin as the language of royal record. This linguistic merger with the rest of Europe had a number of consequences. In England it forced a greater divide between the written and spoken languages, and thus between the general population and the “literate” elite. It permitted the concentration of government administration in the hands of the few who read and wrote Latin. There was an increase in the production of texts, now that English clerics and bureaucrats shared the one universal documentary culture together with their continental counterparts. Finally, the royal text assumed a certain pre-eminence, partly because it was not accessible to the uneducated majority of the population, and partly because through language it became linked to an ancient tradition of public authority and theological scholarship—the RomanoChristian tradition. A sense of the increase in use and political relevance of written forms in law during the development of centralised, monarchical government in England can be gleaned in the transformation of the Anglo-Saxon writ. The writ was initially an epistolary form of text, similar to documents used by the papal chancery and perhaps a legacy of clerical practices in the early Medieval kingdoms. It was used by both kings and churchmen, and the nomenclature and style of formulas is consistent with continental ecclesiastic epistles. In time, the writ assumed the function of the charter, as an instrument for the transfer or notification of transfer of rights, in effect, a title deed that was sealed through the royal office. From the reign of William I the writ-charter was quintessentially a royal instrument, and it

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continued to be transformed so as to have broad utility in government practice. The writ became the all-purpose royal order: it could be a summons to appear before the king as judge or the royal court; a demand for a tax return; an injunction to restore the property or respect the rights of a church or community in compliance with a judicial ruling; or notification of how the king had divided the estate of a deceased nobleman.43

The writ was turned into an administrative document as the Norman kings successively strove to govern the country through centralised institutions such as the chancery. It was at this time and under the same conditions that the writ also took on the form of a judicial order, a form that would eventually become a permanent feature of English justice under Henry II. It may be that the judicial writ was conceived initially as a mechanism by which customs were enforced upon lords and their courts,44 allowing the king effectively to intervene in otherwise inviolable relationships between lords and vassals. However, it was soon adapted more directly as the primary means by which the king assumed control of disputes, by having cases remitted to him personally or to his court based on either the recital of facts by the plaintiff or cases of denial of justice before local officials.45 This had a number of consequences for the nature of justice dispensed by the royal courts, consequences that came to define the general shift from feudal justice to the king’s courts. First, there was a formalisation of legal procedures, where inflexible rules replaced variable oral customs, and even procedures that were no longer appropriate or just remained frozen in texts embodying the static authority of tradition. Second, writing allowed litigation to be removed from its local context, where oathworthiness, personal honour, and standing in the community might be decisive factors in the judicial process.46

The detached environment of the king’s court ensured a certain procedural regularity, though with its crude evidentiary rules and techniques this did not necessarily equate with procedural equity. Third, in ousting customary processes, which by comparison were inherently capable of adjusting to local contingencies, the textual transformation of judicial procedures led to an increased severity in the administration of the law.47 The introduction of a system of standardised writs by Henry II served to reinforce the monarch’s juridical sovereignty at two distinct levels. Symbolically, the king’s majesty was given legal currency in the form of

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sealed royal writs containing his orders;48 the proliferation of these documents entailed the visible dissemination of royal authority into the everyday lives of the people. As a technique for the exercise of power, the automated production of judicial writs through the Chancery made possible the alliance of the judicial and administrative powers, giving birth to a bureaucratic organisation operative through technical knowledge and the mastery of legal processes. The reliance upon written law in the formation of monarchical sovereignty was equally decisive in the other, contemporary Norman state, the kingdom of Sicily. After his coronation in 1220 and his re-entry into the kingdom, Frederick II moved to reassert the regalian rights and domains that had been lost to aristocrats, bishops and abbots in his absence. The Assizes of Capua followed the legal tradition of Roger II, an attempt to re-establish monarchical power as it had been in the reign of his predecessor. After successfully quashing rebellions and defeating the papal army, Frederick compiled the Liber Augustalis, a constitutional legal text explicitly directed towards the urgent need to defend the monarchy against fragmentation from particularist and divisive political elements, especially the nobility and the papacy. The Prooemium to the Liber states the intention to absorb and replace all preceding laws of the kings of Sicily, so that “some force and authority may obtain both within and outside the law courts.”49 Indeed, much like the situation of Henry II in England, Frederick’s Constitutions emphasise a concern with reform of the judicial system as the vehicle for the restoration of crown rights, and in this sense the work was a notable advancement upon earlier imperial legislation in the areas of public law and procedural law, those areas most closely tied to the practice of government and royal justice. The first book, containing the decrees of both King William and King Roger to this effect, is preoccupied with the preservation of peace and order through the concentration of judicial authority within the regalian robes, and the consequent restriction on the private use of force.50 If we bear in mind the dependence of Frederick’s rule on observing a balance between the interests of the feudal nobility and the Crown’s need to ensure both service from its subjects and the control of appointments to royal offices—we may include as relevant the fact that the nobility constituted a military class—we more clearly appreciate the political imperative of restraining private wars and circumscribing the operation of feudal forms of justice. This was to be achieved through the textual reification of centralised justice and the establishment of regular legal procedures.51

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There was another juridical model that was used around this time and whose significance depended upon its textual manifestation. With its Frankish and ecclesiastical origins, the inquiry or inquisitio emerged in the twelfth century as a governmental apparatus for establishing knowledge for administrative or judicial purposes. In England after the Norman Conquest, its ultimate purpose was to enable the Crown to maintain political authority over the local communities by gathering information about the royal demesne: the land holdings, the jurisdictional and fiscal rights and revenues, and the nature of local administration. The Normans utilised the existing, sophisticated Anglo-Saxon structure of government— in particular, the administrative division of communities into shires, hundreds and vills—for the compilation of the Domesday Book, an ambitious project to survey and record the rights of the English population: in particular, the rights to taxes, hidage and rent, the baronial land holdings and the values of manors. The book itself was designated a descriptio, the writing down or transcript of an official verbal investigation,52 indicating the function of writing in supplementing rather than replacing oral legal forms. The verbal investigation entailed “a panel of jurors drawn from the local community who were sworn to answer truthfully to the questions put to them by the king or his agent.”53 This verbal procedure, known by its Latin term veredictum, informed the inquiry in the absence of reliable documentation by declaring a case to be true, for example that tenure or title lay with a certain person. Though primarily an evidentiary tool, in the course of time the procedure was vested with such authority that uncontested verdicts were regarded as incontrovertible facts.54 In England, the temporal significance of the inquiry as a juridical model corresponded with the progressive growth, from the reign of Henry I on, in the size and reach of royal bureaucracy. The increased complexity in the administration of government led to the maintenance of improved records to serve the continuity of royal policy.55 Henry I’s system of Exchequer records and pipe rolls first made possible the emergence of a direct relationship between royal government and the individual, breaking away from the Anglo-Saxon tradition of dealing with communities.56 The modality of this relationship, which coincided both with the expansion of the organisation of official functions and the development of the practise of record-making, characterised the specialised function of the royal inquiry from the late twelfth century. Henry II’s Inquest of Sheriffs in 1170 was a general investigation of the provincial administration of justice, not merely in the county and hundred courts but in the franchises of the barons, lay and ecclesiastical.57 It was principally directed towards

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the exactions of the sheriffs and bailiffs, their embezzlement of public funds and the oppressiveness of their jurisdiction. The result of the inquest was that sheriffs were removed from their offices and replaced by officers of the Exchequer, persons who were less closely connected with the counties through ownership of property and thus more amenable to royal influence.58 Moreover, the inquiry extended beyond the situation of the royal offices to include the financial receipts of provincial feudal lords, ecclesiastical rulers, merchants and citizens of towns, and ultimately all men.59 The inquest renders explicit the two preoccupations of royal government at the time: to establish a legal relationship with each individual, manifest through knowledge of his financial circumstances; and to authenticate this knowledge by requiring the information to be recorded in writing, importantly, with the record to be held by a centralised institution. It is possible to situate the inquisitio within two related genealogical processes. The first is the development of that mode of power introduced by the early Christian Church that we have discussed as pastoral power. The inquiry can be viewed as a product of pastoral power, bequeathed by the Church during Carolingian rule at a time when the ecclesiological influence on secular power was at its highest. As a way of exercising power it involved both the pastor’s constant, penetrative gaze and his search for the truth within each individual soul and through every human act. The Church itself utilised the inquiry or inquisition as a primary spiritual, administrative and judicial tool within the machinery of its government during the high Middle Ages: the ecclesiastical inquisition was at the same time a spiritual inquiry concerning sins, transgressions and crimes committed, and an administrative inquiry concerning the way in which the Church’s assets were managed and the profits gathered, accumulated, distributed.60

The inquiry operated as a particular form of truth-establishment, one that relied upon a set procedure of questioning and recording responses to questions; at the same time, it was a technique that was generalizable, that could be used and modified to aggregate information across diverse fields of knowledge (economic, demographic, administrative) and social practices (judicial, religious, tenurial). Because of its ecclesiastical origins, the inquiry very early on developed as a written procedure, with the archival qualities favoured by the Church, particularly the papal bureaucracy.

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The second genealogical process is that by which, during the twelfth and thirteenth centuries, sovereignty tended towards the concentration of political power around circumscribed territory and its inhabitants. This concentration of political power went hand in hand with the accumulation of wealth and armed power. The inquiry was the model through which the sovereign arrogated supreme judicial authority—the exclusive authority to settle disputes and declare right. This judicial power became necessary when the sovereign, with his monopoly over the use of violence and coercion and the attempt to manifest his presence through the peace and order of the realm, took the place of the victim or injured party in offences or disputes committed within his territory, thereby converting wrongs against other individuals or families to crimes against the crown. In taking responsibility for prosecuting such infractions against the crown, and requiring compensation for the injury the kingdom was now deemed to have suffered, the monarch wrested control of judicial procedures from the feudal courts.61 The inquiry or inquest thus owed its continued existence to the evolution of royal courts, and to the entire technology of legal writing that was nurtured within that environment. As a tool in aid of the administrative and judicial consolidation of monarchical authority, the model of the inquiry was located at the convergence of the formalisation of laws and legal procedures associated with the evolution of Medieval Roman and canon laws, and the new epistemological interest in distinguishing truth from falsity, an interest that found its ideal habitat in legal and theological discourses. This convergence, of written law and the search for truth through the apparatus of legal knowledge, defines what we have called textual practices and marks the stage of the development of juridical thinking during which right increasingly became linked with the representation of sovereign power and its relationship to the political production of truth.

Charters and Statutes of Rights In general, it can be said that the emergence and proliferation of charters and statutes of rights reflected the situation whereby feudal relations were transformed as a consequence of the jurisdictional expansion of monarchical powers. The political fragmentation we associate with the first wave of feudalism rendered necessary the granting of liberties in the form of limitations, guarantees, exemptions and franchises—these were the instruments by which local juridical regulation was able to take root within the orbit of monarchical states. Already during the seventh and eighth centuries, Lombardian legislation (namely, the

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Edicts of kings Rothari and Liutprand) proclaimed rights for the subjects of the kingdom—rights that were to become commonplace in charters of the thirteenth and fourteenth centuries—obliging the organs of the crown to adjudicate per legem, to conserve omnibus iustitium, to not arbitrarily violate the personal integrity of subjects, to not impede the liberty to stay and choose one’s residence once certain dispositions had been observed, to not impede certain forms of association, and to guarantee certain aspects of patrimonial right.62 Moreover, charters and statutes performed a fundamental role in the birth of communal politics associated with the rise of independent cities and the revival of trade. The movement towards the legislation of personal rights was accelerated in Italy, where feudalism had least disturbed the Roman civic tradition, and where the demands of an emerging money economy were most forcefully asserted. In Carolingian imperial statutes a series of new rights appeared as freedoms securing commerce and trade, including prohibitions on the restraint of men undertaking servile work, and greater limitations or immunities on the imposition of fiscal obligations and personal and military service. It is difficult to achieve any precision in the analysis of these written legal instruments viewed as a single juridical form, for the obvious reason that there were as many different types of charters and statutes as there were differences in the socio-political environments from which they emerged. We can, nonetheless, suggest some of the underlying conditions that, in part, explain the timing of their appearance and the functions they performed. In many cases, sovereigns and feudal lords produced charters of liberties and statutes of rights in response to a state of conflict or war, whether internal or external to the realm, and whether the conflict was concluded or the grant made in order to achieve a settlement or peace. After quashing the rebellions by the English landowners, William I found himself defending his sovereignty against the economic and political ambitions of the Norman nobility he himself instituted, and consequently sought to “foster every remnant of local independence among the English as a check on the rebellious and tyrannical policy of the great feudatories.”63 One of his few legal initiatives was to promulgate a statute aimed at separating the ecclesiastical and the secular jurisdictions over the clergy, which had previously been assumed by the authority of the bishops through their own courts and councils—the result was to wrest from the ecclesiastical nobility authority over secular matters even in relation to its own members. The struggles between the crown and the barons continued into the reign of Henry I, who sought to strengthen royal jurisdiction at the expense of his feudal vassals by following a juridico-political programme

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in three distinct directions. First, he avoided the large-scale redistribution of territory and jurisdiction and reduced the hereditary franchises of the nobles. Second, he worked towards the development of an effective, centralised system for the administration of justice, by setting up the financial system of the Exchequer, facilitating access to the curia regis and organising itinerant justices. Third, he fostered a relationship with the people through restoration of the county courts, the grant of charters to the boroughs and the authorisation of trade guilds in the towns.64 Henry’s Charter of Liberties, issued at his coronation in 1100, proclaimed the peace and declared the restoration of the ancient customs of the nation, referring to an idealised past symbolised by the laws of Edward the Confessor; notably, it included a provision regulating the relationship between his vassals and their feudal dependents on the same terms as those between the king and his feudatories, a decisive step in imposing royal laws in otherwise private feudal relationships.65 According to J. C. Holt in his discussion on the historical context of the magna carta, war was the compulsive urgency behind administrative experiment, and charters of liberties were one of the costs of administrative inventiveness and efficiency.66 This certainly was the case in England, where the Norman and Angevin kings exploited the feudal structures as a source of military revenue and as technology to repress rebellions and political dissent, but at the same time initiated administrative innovations that altered the governmental system, actions that appeared to many of their English subjects as threats to their ancient rights and customs. It was through grants of liberties and immunities that the perceived threats were allayed, and the presence of royal justice across English lands put in place to parallel the monarch’s tenurial presence. However, other parts of Europe experienced similar phenomena, Italy in particular. As early as the late ninth and early tenth centuries, when the Hungarian invasions penetrated Germany and northern Italy and during which raids of monasteries had become frequent, the Italian kingdom issued charters for ecclesiastical organisations, charters which both guaranteed rights and removed obligations for the new inhabitants of defensive fortresses. In some cases, a bishop was granted the sole right to construct a castle for the defence of a territory, from which public officials were prohibited entrance. In other cases, the bishopric town, as a distinct entity, was the beneficiary of liberties, as was the case in 911 at Novara where a charter from Berengar I was granted in favour of an association of 28 men together with the vice-dominio of the town’s diocese, who were all residents of a recently founded castle.67

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By the twelfth century there had emerged a steady tradition of the grant of imperial charters to northern Italian cities, with Henry II, Conrad the Salic, Henry III and Henry IV all issuing numerous and extensive charters. As towns became more prosperous, in an era in which the existence of foreign emperors meant the lack of a constant imperial presence on the peninsula, municipal independence and the formation of defensive alliances amongst towns were fostered. When Frederick Barbarossa, through the Treaty of Constance in 1183, sought to bring to an end the protracted conflicts with the towns that united as the Lombard League, he resorted to granting liberties that gave the towns independence of imperial rule, effectively renouncing any right to interfere with the internal government of the Lombard cities. The guiding political principle that operated through the series of pacts and conventions promoted by Frederick was to conserve universo populo legem et pacem, the unity of all peoples through laws and peace. In the successive century both Frederick II and his son Henry VII found it expedient to grant concessions to the ecclesiastical and secular princes in order to quell opposition and maintain some semblance of the unified control of the empire. This was a route that had already been charted by the Normans in Sicily, where the creation and maintenance of the kingdom depended as much on the ability to summon the support and cooperation of the cities that had enjoyed a semiautonomous existence, as on the effects of conquest. During the reign of Roger II alone, charters of rights were granted to the citizens of Salerno in 1126, Amalfi in 1127, Messina in 1129, Cefalù in 1130, Bari in 1132, Benevento in 1137, Trani in 1139 and Naples in 1140.68 If internal political struggles and external conflict were conditions that frequently spurned the resort to grants of rights and liberties, this consequence was by and large accepted as a necessary process or evolution. Rather than a rupture in the theory of the divine right of kings, it was treated, by the use of language no less symbolic, as a return to the ancient rights of the people, thus enveloping these new events with the mythical cloak of historical continuity that was such an important aspect of the way in which Medieval society viewed its present. The naturalness of this evolution was facilitated by the fact that the movement we are discussing took place predominantly within the context of feudal relations, which, we have seen, were inherently capable of transforming themselves in this way through the conceptual apparatus of right. Kings granted charters of liberties directly in their own name, for such acts entailed the extension of the feudal relationship with their vassals (the land-owning barons and magnates, the military class) to that with their subjects as a whole, as reflected in the coronation pledge, though generally through the

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medium of associations—boroughs, cities, guilds and churches. Charters thus bore witness to the existence of a personal relationship between the grantor and the beneficiary, a relationship which theoretically was born with the monarch’s formal ascension to the throne, but came into practical effect only with specific juridical promises in written form. Seignorial charters, like imperial charters, served to establish in juridical terms the relationship of lords to the inhabitants of a certain territory, whether rural estate, town or region. Though often expressed as consensual arrangements promoting an equilibrium of interests, they generally functioned to reify the rights or customs in relation to the obligations owed to lords, or to render in exact or precise terms the taxes and services that in practice often were uncollected or neglected. It was common for such charters to use the terminology of pacto, conventiones and contractus, but the types of obligations imposed upon the people were often strictly feudal ones: the promise of fidelitas e servitium, in other words, vassalage or some other form of subjection; the payment of fixed, annual or permanent taxes; the performance of public and defensive works; recognition of the inviolability of the lord’s property; or recognition of local uses and customs.69 Feudal practices also penetrated constitutional charters or statutes of the people, the juridical basis for the Italian communes. In Italy, as the emperor was increasingly estranged from his southern lands, it was the feudal lords who remained in constant and immediate contact with the populace. Lords such as the counts of Biandrate, the marquis of Saluzzo, the abbot of San Sisto of Piacenza and the bishops of Asti and Padova had a need for individual and collective protection, and consequently issued guarantees of civil freedoms to the inhabitants of their castles and territories.70 In the Annales Placentini Guelfi of 1219, in which is recounted the citizenry struggle against milites in the Northern Italian city of Piacenza, it is said “illi de populo coniurationem insimil fecerant.”71 Thus, the commune, a notion that at this early stage was equivalent with that of the people, was born from this coniuratio, an oath pledging mutual assistance and defence of its leaders. What defines the feudal nature of certain statutes is the extent to which, firstly, they reflect a relationship based upon the mutual assumption of obligations, and secondly, the relationship derives its legitimacy through the sacredness of the crystallising act. At Lucca, the societates peditum, already recorded in 1197, was confederated in 1203 through a “concordia societates peditum,” a federal pact manifested through a solemn “cartula o carta Concordia,” which also was designated a “sacramentum Concordia.” Similarly, The Statute of the People of Bologna of 1248 refers to the “sacramentum

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ancianorum populi Bononie honorandi” as preceding the “sacramentum hominum societatum,” a reference to the ancient people of Bologna being bound by a sacred oath and being transformed by a similarly sacred act into a legally recognised society.72 Because of this feudal context, the charter of rights and privileges was never a phenomenon restricted to the city. Partly because imperial needs revolved around territory as a whole, and because the building of defences necessitated the participation of both the urban and suburban populations, the suburbs became important attachments to the cities, and the communal movement often extended beyond the city walls to encompass the countryside which the city partly depended upon for its survival. There are many examples of the political commune of the city extending to the burgs in the surrounding territory, such as the small town of Poggibonsi obligating itself to the pacts involving Siena.73 This communion of city and burgs is documented as early as the year 904 in a diploma of Berengar I for the benefit of the bishop of Bergamo, which refers to the obligations and rights of both the urbans and suburbans. In particular, imperial charters and diplomas continued to recognise the inhabitants outside of cities, since any acceptance of a political division among his subjects, such as between the civitatus and the comitatus, undermined the universalist claims of the emperor. Hence, Frederick I’s privileges of 1176 to the city of Cremona, and Henry VI’s diploma of 1187 to the city of Lucca, conceded privileges to the suburbs as well. Similarly, in privileges and concessions granted in 1059 by Marquis William of Savona to the people of Savona, there are included promises not to enter the castle, not to take up residence in the castle, the burg or the city, and not to arbitrarily sequest any person or thing in the castle, burg or city,74 demonstrating the equal treatment of citizens and the non-urban inhabitants of the territory under the feudal jurisdiction. Where royal charters granting liberties and immunities were entrenched in the economic structure of traditional feudalism, and the consequential jurisdictional aspects of this structure, constitutional statutes or charters exhibited slightly different contextual allegiances. The compact or concord between the people and their leaders that such instruments recorded belonged more to a political than economic configuration of feudalism.—even then, it was not the pure feudal forms that contemporaneously existed in France and England but the more heterogeneous or corrupted form that was intermingled with lingering ideals of Roman imperialism and the theocentrism of a Church hierarchy that was as centralised as any monarchy. The result was a legal document that simultaneously presented the distinct sets of oaths by the populace and

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its feudal superiors. The statute of the people of Bologna—whose primitive form was certainly the societatum armorum et artium Bononie— states that on the sanctity of God the ancient people of Bononie must maintain and defend the consiliari societates armorum et artium civitatis, who have the reciprocal obligations to protect the good honour and well being of the people and not derive gain from office without legal consent, as well as obligations in relation to the discipline of the society’s councillors and ministers.75 Similarly, the statute of Bergamo contains conjoined sets of oaths from the people and their leaders: iuramentum sequimenti comunale. It served as a legislative model for the transition from the sacramentum of two parties to a single statute for the people as a whole; in other words, from the consecrated mutual pledges to a legal instrument verifying a political state of affairs or constitution— sacramentum populi to statutum populi.76 This shift in nomenclature, which perhaps was barely perceptible given the conceptual collusion of the sacredness of the oath and the authority of written law, nonetheless epitomised the general movement towards political autonomy of civic institutions—though still broadly within existing feudal structures—which was characteristic of the Italian cities that had begun to experience fertile economic conditions during the twelfth and thirteenth centuries. We may suggest, as a general outline, that the emergence and proliferation of charters and statutes of rights took part in the transformation of right from an inherent quality of a unitary and radical sovereign power to simultaneously signify the multiple liberties of individual subjects. Of course, we should bear in mind that what was involved in this transformation was more than merely a sort of conceptual enlargement, the lateralization of an idea that had previously been confined to a specific theo-juridical doctrine of political power—it was the function and practice of sovereignty that metamorphized. Though the notion of the sovereignty of the people or the general will was foreign to the twelfth and thirteenth centuries, there are enough signs to indicate that the gradual shift in the conceptualisation of sovereignty was directly influenced by the practice of investing individuals, communes and corporations with legally enforceable rights. With this shift came the association of individual liberties with political rights, though we remain at its most embryonic stage. In the first place, where monarchs attempted to curb the power of the feudal lords by granting charters of privileges and concessions to communities, incorporating liberties that had previously been the province of their feudal superiors, they effectively replaced territorial lordshipswhich were powers of government and the exercise of local

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justicewith communal rights. This specific phenomenon was part of the more general movement towards social de-territorialisation that we considered in the discussion on feudal rights. The result of the gradual extinction of territorial lordships was to redefine the nature of political power and alter the dynamics in the relations among the subjects of the realm, relying less upon the king’s status as the culminating point in the hierarchy of land-holding than on the new juridical terms of public power. In short, it was to re-establish public authority through the imposition of a comparatively homogenous and uniform set of legal relationships between the monarch and his subjects, nevertheless built upon the foundations of customary law and feudal rights. With the removal of the intermediate lords whose ancestors had received the charters of liberties and bestowed franchise on their tenants, freedom ceased to be derived from a multitude of separate land grants and was seen as the sum of the customary rights of people subject to the king alone.77

Of course, the extinction we are speaking of was merely the final effect of a complex series of conflicts that witness the monarch’s attempts to exert influence within a highly structured feudal society, an environment in which his public status had always been equivocally expressed, at least until the thirteenth century. More than this, it was an effect also of the altered economic conditions created by the introduction of the money economy into feudal relations. Indeed, territorial lords contributed to these changes by converting the services provided by their villains into free burgage tenure, thereby creating trading boroughs78a juridical base that in conventional terms was largely antithetical to the territorial rights of feudal lords. In the second place, the process was supported by the development of laws arising from the hearing of legal actions in the king’s courts on the extent of the jurisdiction associated with territorial liberties such as those held by churches.79 The law of liberties that emerged was formulated with the interests of the crown and community as imperatives. This had the consequence of reifying recently gained municipal freedoms under the appearance of a continuity of legal tradition that belonged to the mythology of royal justice. The development of the king’s laws created an increasingly expanding gulf separating liberties and customs from lordship; the more actions in which the rights of lordship were contested in the royal courts, the more likely it became that communal libertiesgenerally with the weight of custom or charter behind themwere considered to exist in contradistinction with the jurisdictional privileges of lordships.

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In the third place, there was a parallel shift in the subject of grants of rights through the medium of written instruments. The twelfth century sees the birth of charters in which the subject is the entire population of a city or region rather than special persons or groups (such as a bishop, monastery, military vassal, or trade guild). This was certainly more acute in the case of imperial sovereigns whose governmental modus operandi borrowed from the Roman ideal of public power; Frederick I based his recognition of the legitimate enjoyment of political liberties of citizens in terms of a continuous imperial tradition, invoking an unbroken continuity with the past. In central Italy in particular, charters began to be addressed directly to the people of towns, circumventing ecclesiastical suzerains who had previously held liberties on behalf of the communities within their bishoprics. References to the universal citizenry (l’universitas) and to all the cives and hominess of the city, castle or territory are frequent in these charters. Moreover, not only were charters expressed generally at the population, in some cases they also projected to future potentas, applying neither to a certain time or to certain people but to the unity of the territory and affecting those that would later come to be part of that territory.80 In the fourth place, the role of the statute in the development of the Italian communes cannot be overstated, both in terms of the stability of government which it produced—a fact favouring the evolution of oligarchic authority—and the constitutional elements of political power that it established, which lead to some continuity in the structure of political institutions and in administrative practices, quite apart from providing an advisory role for jurists in the interpretation of legislation.

Public Law and the Juridical Norm The Medieval concept of public right was associated with the development of juridical sovereignty and the textual practices that supported this political form. The tendency in intellectual historiography to view the re-emergence of the Roman doctrine of public right within later Medieval jurisprudence in terms of an embryonic constitutionalism or theory of popular sovereignty suffers as much from its self-fulfilling logic as from anachronism. The theory of public right inherited from the early modern period, which continues to cast a shadow on current philosophies of the nation state, is premised upon an historical thesis that takes the state to be a human construct whose purpose for being is in direct relation to the inevitability or naturalness of war. Thus, public right is concerned with the means of overcoming the state of war—whether a real, primordial state or the mythical state of nature—through the constitution of a political entity

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whose aim is a universal or perpetual peace. Indeed, this is the thesis that drives Kant’s doctrine of public right.81 As Foucault has suggested, philosophico-juridical discourse has always worked with the assumption of a pacified universality,82 whereas it may be that beneath the veil of peace and order war has been waged all along and exactly with this discourse as its tool. The argument here is that rather than see the institution of a legal regime as the point at which a pacific and unified state replaces the state of war, we should investigate the means by which the juridical structure of power is able to operate on the pretext of universal reciprocity. This entails suspending the dialectical paradigms associated with the conventional conception of sovereign right: the instability of war being replaced by the stability of law; the multiple, dissociated, feudal-military powers being absorbed by a centralised juridical power; the fracturing nature of bellicosity being overcome by the universality of right. In the shadows of these paradigms lies the question of the force and violence that remain and are ensured by the mechanisms of juridical power. This, therefore, constitutes our starting point: for what reasons did Medieval jurists develop a discourse on public law; how was the discourse applied to contemporary political problems; and, what allowed the discourse to be sustained—in fact, elevated—beyond those initial problems, so as to embody a distinct theory of public right that would be adopted as the foundation for late Medieval theories of sovereignty? We can approach an answer to these questions by examining the principal juridico-political problems to which the Medieval doctrine of public right was addressed.

Lex Regia The brief, elliptical statements of lex regia in the compilation of Justinian were the principal Roman law sources relied upon by the late Medieval jurists to theorise on the nature of sovereignty. The idea that the Roman populace conferred sovereignty and authority to govern upon its emperor appears in both the Institutes and Digest.83 However, neither this idea nor the conclusion that follows in each of the respective passages— that the pronouncements, decrees and edicts of the emperor have the force of law—was uniformly interpreted by the commentators. It was possible to argue that the translatio imperii from populus to princeps entailed transference of the substantive sovereignty of the Roman people to the emperor, in the sense of a definitive renunciation of its legislative rights. Alternatively, the lex regia might be held to lie in a mere concessio of usus

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from the people to the emperor, by which the emperor was granted a limited office and right of user that remained subject to the people’s power of revocation.84 If the former semantic construction tended to be privileged over the latter, it was not due to any inherent, hermeneutical bias in the Roman texts, though it cannot be ignored that the texts were understood more in the context of the imperial age of Justinian than of classical Rome. Rather, it was the permeating influence of the early Medieval doctrine of divine right—which pronounced that all temporal law was merely a reflection and derivation of divine law—that made it more difficult to locate an irrevocable mandate in the Roman people. For many reasons, Medieval lawyers in the thirteenth and fourteenth centuries were less concerned to establish a theory of popular sovereignty from the repository of received Roman law than to explain the nature of sovereign power, since the authority of the emperor and lesser kings was a fact of life that, in the post-feudal age, required legal justification. The common juridical device to this end was the association of ius publicum with the status of the prince. The theory of lex regia lent itself to the reconciliation of the prince’s status as above the law (legibus solutus) with the expectation that the prince would protect the integrity of those laws by committing to observe them. Frederick II explained this reconciliation through the metaphor of the prince as both father and son of justice: …the Quirities conferred the jus et imperium for establishing law on the Roman Princeps by the lex regia. Thereby the source of justice might proceed from the same person from whom their defense proceeded… Therefore, it is proper that Caesar should be the father and the son, the lord and the minister of justice: father and lord in dispensing justice and, when it has been dispensed, in maintaining it; thus he should also be the son in reverencing justice and the minister in administering it in its abundance.85

The idea was expressed in less figurative language by Bracton, who found no irresolvable paradox in the dual status of the prince—as both above law and subject to law—on the premise that the prince’s power to legislate (which in this sense rendered him superior to the law) derived from the lex regia, the juridical act constituting the transfer of imperium, the source of the power to legislate and upon which his entire authority depended.86 Of course, Bracton went further to explain that the precept “what pleases the prince has the force of law” (quod principi placuit) should not be interpreted as referring to the prince’s personal will, but to what is rightly decided in consilio and deliberation with his magnates,87 a qualification that must be understood in the context of the important role of the king’s counsel within the legislative practices of late Medieval

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English monarchs. Roman lawyers achieved the requisite harmonisation of textual interpretations by countering the theory of lex regia with the statute known as Digna vox: It is a statement worthy of the majesty of a ruler for the Prince to profess himself bound by the laws. Indeed our authority depends upon the authority of the law. And truly it is greater for the imperial government to submit to the sovereignty of the laws. By this rescript we declare what we do not permit ourselves.88

Accursius’ gloss of the texts underlying both lex regia and Digna vox suggests the view that the emperor is loosed from the laws only in the sense that there is no superior magistrate who might exercise jurisdiction in his case, but that by his own will he subjects himself to the laws.89 John of Salisbury argued along similar lines, though, as we have already intimated, with a distinct emphasis on the division between the private and public will of the prince: the maxim that the will of the prince has the force of law is a reference to the will activated in his persona publica, under which the prince is obligated to serve the public utility (aequitatis servus est princes).90 The fact that jurists were prepared to marry lex regia and Digna vox in their writings on sovereignty is made more explicable by their understanding of the nature of law. The divine origin of law was an assumption that underlay Medieval discussions on lex regia. The translation of power from the Roman people that produced imperial authority was effected through a constitutive law, and it was the sacrosanctity of law that dictated the need for the prince to submit to or regulate his behaviour in accordance with his own lex. Accursius seemed to be aware of the paradox involved in the idea of a prince’s sovereign right to breach laws, and in his glosses on the Digest he made a number of references to the immutability of law and its promulgation by the divine will.91 Similarly, in the fourteenth century Petrus de Bellapertica argued that the divine nature of the office of imperium entailed its obligation to observe higher laws.92

The Inalienability of Public Right An important feature of lex regia was the concept of the inalienability of sovereignty, expressed in terms of the perpetuity of the majesty of the Roman people that was transferred to European kingdoms and nations. In one sense, this theory might be considered the crowning conceptual achievement of the discourse on juridical sovereignty that was instrumental

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to the construction of the centralised state form. In societies that were moving away from strict feudal forms of political power it was critical for the survival and expansion of monarchical authority that the rights pertaining to the status of the ruler be incapable of extinguishment or alienation, thus dispersion. This was a very real concern given that the twelfth and thirteenth century monarchies had been constructed upon feudal foundations, and effectively reproduced some of the feudal structures, at least those pertaining to the royal fief. Indeed, some jurists argued, against the idea that temporal jurisdiction is res incorporales and combing both feudal ideas and the new corporate theory, that the royal reign is a universitas facti corporalis, consisting of city, castle, villas and subjects, all of which were capable of being possessed and transferred along with their respective jurisdictional rights.93 The inconsistent approaches to the alienation of property, in particular, derived from the basic antagonistic relationship inherent in the feudal monarchy, resulting in incompatible needs: on the one hand, for the military and financial support of the magnates and barons, attainable most effectively through the feudal network of services and concomitant grant of property rights; on the other, for the political unity and control of military resources which, to some extent, depended upon continuity in and concentration of the rights and holdings of the crown. Nonetheless, monarchs proclaimed—notably through the vehicle of the coronation oath—the principle of the inalienability of sovereignty necessary to protect the majestas or authority of the king, in much the same way that the papal chancery earlier on insisted on inalienability clauses to protect Church property and rights in the oaths of secular rulers. We see, for example, in the laws of both Frederick Barbarossa and Henry I statements to the effect that the king’s duty is to maintain the status Imperii, iura regni or dignitatus pertaining to the king’s authority and the realm as a whole, with the realm being taken to include its subjects.94 In another sense, the theory of inalienability marked the growing consciousness of the tension between private and public rights. Medieval writers related the theory to fundamental concepts of public law, such as the crown and office, representation and consent, and patrimony and fisc.95 Baldus de Ubaldis referred to the commonwealth and fisc as eternal and perpetual with regard to their essence, despite frequent changes in disposition: “[a]nd the totality or commonweal of the realm does not die, because a commonweal continues to exist even after the kings have been driven away”—non enim potest respublica mori.96 Similarly, the fiction of the immaterial and invisible crown, Kantorowicz has argued, served to attribute a sempiternal character to sovereignty, conceiving a political

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metaphysis extending beyond both rex (the physical king) and regnum (the physical territory).97 The impetus for this radicalised notion of the crown is twofold. In the first place, particularly on the continent, civilian jurists were preoccupied with explaining through legal concepts the relationship between the Empire on the one hand and kings and city-states on the other, a relationship which in fact was in a constant state of change during the thirteenth and fourteenth centuries, and rarely uniform from one place to another. The formula Rex in suo regno imperator est (the king is emperor in his own lands) was commonly asserted, but it is less certain in what sense the phrase was understood; as legal historians have pointed out, it is susceptible to various interpretations, from the complete independence of kings and kingdoms to an autonomy qualified by geographical realm and public law, though ultimately subject to imperial rule. The concept of the perpetual crown did not resolve the contest, but did succeed in shifting the focus towards the theory of monarchical authority, and in so doing, lead to the strengthening of the legitimacy of royal sovereignty. By the end of the fourteenth century it was no longer controversial to claim that the king exercised the same authority as the emperor, and it was possible for the glossator Guido of Suzzara to further promote the idea that the submission of the prince (not merely the king) to the law was a matter of necessity rather than an act of the will, even if his may be considered a marginal view among contemporary writings.98 In the second place, arguably jurists were equally interested in the nature of the relationship of the king to the law, particularly when viewed in the context of the highly developed state of legal science and its treatment as an independent source of human knowledge. The glosses and commentaries of the period are replete with jurisprudential discussions on the right of the king to tax his subjects, or to grant privileges and immunities, or to create particular laws. As the precise extent and function of royal jurisdiction were being formulated, the theory of the inalienable crown made possible the construction of royal office as a juridical entity distinct from the person of the ruler. This construction permitted the division of private and public law, which had been imposed as the framework for conceptualising the rights of individual subjects in relation to the prince ever since the revival of Roman law in the twelfth century, to be maintained even at the level of the sovereign head, a device which, in turn, restricted the king’s activities as a feudal lord. Importantly, though the theory of the inalienability of sovereignty may have been conceived as a means of protecting the physical royal demesne, in the contemporary discourses it was argued as much in aid of regality and majesty, the less tangible rights of rulership. This need arose

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principally because of the threat posed by the Donation of Constantine (the mythical document evidencing the Emperor Constantine’s gift of temporal power to the papacy), which proved an obstacle to advocates of royal supremacy as well as commentators on the investiture conflict. At the Council of Vincennes of 1329, the royal lawyer Pierre de Cuignières defended the doctrine of the inalienability of the jurisdictional rights essential to the crown, referring to the coronation oath by which the king swore both never to alienate these rights and to revoke the alienations of his predecessors.99 Earlier, in his De potestate regia et papali of 1302, John of Paris presented more intricately reasoned arguments against the validity of the Donation: in particular was the proof that whereas the emperor as an individual may donate as much as he wishes to the Church, his responsibilities as Augustus prevent him from doing so in relation to the property of the fisc which, “having been established for the use and benefit of the state, may never perish.”100 Expressed schematically, it may be said that the relationship between the doctrine of lex regia and the theory of the inalienability of sovereignty corresponds to two sources of pressure inherent in Medieval public right. As a reaction to certain tendencies in feudalism, monarchs and their jurists were concerned to ensure that private rights held by individual subjects did not prevail over public rights that were largely associated with the functioning of royal authority. The lex regia supplied the doctrinal basis for the rights of regality to be seen as primordial and thus superior to all private rights. By the same token, the inherent weaknesses of feudal monarchy, the political exigencies associated with the emergence of kingdoms and city-states in the shadows of the empire, and the influence of the juridical conception of sovereign power all dictated the need that public right have an existence independent of the person of the king—it is in this context that the notion of a perpetual crown embedded with inalienable rights came to absorb late Medieval theories of sovereignty.

Utilitas Publica, Causa: the Common Good and Necessity In the course of the thirteenth and fourteenth centuries the discourse on lex regia was confronted by the concept of utilitas publica, an idea which could claim an equally illustrious lineage through writings dating from antiquity. This concept drew its strength from the theory of the inalienability of sovereignty, and though the latter theory could easily subsist without being connected to the notion of the common good, for a number of historical reasons that are worthy of investigation, the theory of inalienability came to survive principally by virtue of the reformulation of

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the function of sovereignty in terms of achieving and securing the common or public good. Like many of the political ideas that we have already encountered, utilitas populi flourished in ecclesiastical doctrine before its use by Medieval civil lawyers. Early Christian writers adopted the Roman notion of utilitas populi or utilitas publica, which had been used specifically to describe imperial authority, for the purpose of promoting the pastoral function of Christian government, both divine and temporal. Tertullian relied on this idea in defining sovereign authority as “authority oriented toward preserving and fostering the welfare of the Christian people.”101 Cyprian used the phrase utilitas ecclesiae to refer to the physical and spiritual welfare of the Christian community, and more generally to the maintenance of peace and concord.102 It cannot be ignored that the development of the concept of utilitas ecclesiae between the third and fifth centuries received its impetus from the context of late Roman society, in which imperial legislation was the principal tool for dealing with the problems arising from civil discord and factional divisions across an increasingly decentred empire. The early Church similarly was unsettled by recurring schisms and jurisdictional disputes. The premise that unity and peace could be ensured by the law-making function being oriented towards the good of the Christian people as a whole gained ideological strength as an axiom of ecclesiastical government and a justification for the Church’s expanding jurisdiction in hitherto secular matters. In canon law the term ecclesia came to be understood as incorporating both the religious and civil government of the Christian people. This dual jurisdiction had been made possible by the original grant of legislative authority to Peter, a power he attributed iura terreni regni et celestis imperii. Utilitas ecclesia thus came to refer to the sphere of public law through which, firstly, the integrity of ecclesiastical structures was to be maintained for the sake of the salvation of the Christian people, and secondly, the Roman pontificate could claim imperium spirituale over all secular powers—a force which tied territorial matters to those of heaven, and secured papal intervention in the life of the empire and of kingdoms.103 There was a shared intellectual tradition between the ecclesiastical and civilian conceptions of public law. Both derived from Ulpian’s founding definition, which associated the nature of governing authority with the religious character of public office: Public law [ius publicum] is that which respects the establishment of the Roman commonwealth…Public law covers religious affairs, the priesthood, and offices of state.”104

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Hence, it was possible for the same conceptual apparatus to be used for different and often conflicting purposes, where the result was the reification of the idea of public law, however heterogeneous and imprecise, rather than its deterioration. The tendency in the writings of the civil lawyers was towards the arboreal expansion of the semantics of public law: because utilitas publica came to be seen as the predominant aim of the ruler, the ratio publicae utilitatis became synonymous with the ratio status regni (the reason of state),105 which in some writings was even indistinguishable from the Medieval respublica itself. What is without doubt is the conscious effort on the part of jurists from a variety of political positions to equate the public status (the estate of the prince) with the public good, what may be considered to be the state of the people or of the subjects of the regnum. What permitted this equation to be made so readily given the dominance of the principle of legibus solitus in the theory of lex regia? At the political level the theory of the divine origin of sovereign power, which had served well both emperors and kings at least until the late eleventh century, was reformulated by ecclesiastics as a hierocratic thesis that privileged the papacy. For their opponents the most viable means of challenging this thesis without necessarily denying the divine right of secular rule was to locate an alternative and historical source of power in the community or the people as a distinct entity.106 This was achieved, at the expense of the imperial tradition of Roman law upon which the papalists exclusively relied, by reviving the older republican tradition which emphasised the irrevocable mandate possessed by the Roman people.107 In fact, it was the co-existence of these two Roman law traditions that encouraged the attempts to harmonise the principles of lex regia and digna vox. The republican tradition of Roman law could more easily accommodate the idea of the public good as a limitation on the exercise of imperial and royal power. There is evidence of the constitution of the people as the subject of public right in the synonymic terminology of the jurists. By the time that Uguccio of Pisa was writing, the notion of sovereignty was firmly encapsulated in the juridical idea of regnum, which in turn could be expressed through the broader language exemplified by the terms provincia, patria, natio, populo and civitas. These borrowings and cross-categorisations reflect the fact that regnum was conceptualised through the fiction of the corporate body, as encompassing both the head and its members, the former representing and acting in the interests of the latter. A consequence of such discursive developments was that civitas could be seen as possessing its own jurisdiction and set of public rights.108

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As a matter of legal theory, the principle of utilitas publica, when married with the flexible Medieval interpretation of lex regia, was argued as much in justification of the exercise of the sovereign’s legislative power as for the defence of individual private rights. In particular, the right of the ruler to wage just wars in defence of the realm was considered a fundamental ratio of kingship. By associating the realm with the patria109—consonant with the theory of lex regia as influenced by the republican tradition—the necessity of defence could also be argued to be the ratio publicae utilitatis (reason of the public welfare). In the period of transition between the schools of the post-glossators and the commentators in the late thirteenth and early fourteenth centuries, Pierre de Belleperche, whose mainstream views exercised influence over later, important jurists such as Cino of Pistoia, could declare without controversy that both ratio probabilis (demonstrable or evident “reason”) and causa (necessity and utility) permit the king to violate the natural law itself if he needs to seize private property for his hungry soldiers.110

Of course, behind the discourse of the lawyers we can glimpse the political urgency dominating the claims for the rights of the crown. The gradual dismantling of feudal immunities and privileges, the marginalisation of significant fiefdoms, and the accumulation of military resources were achieved in part through the cause of the defence of the realm and in the name of the reason of public welfare, the reason of the state itself. Moreover, customary law, upon which feudal relations depended, was weakened as much by the growing importance of public law as the theoretical framework for government, administration and the fisc as by the increasing reliance on Roman private law in the settlement of disputes. However, putting aside the exceptional case of the necessity of war— which in any case may be explained by the ancient idea of the sovereign as the custodian of peace, an idea that served throughout the Middle Ages as a reference for kingly duties—public law increasingly tended towards the juridical reification of private rights. Once again, it was the borrowing of institutions and procedures from Roman private law and their conversion into elements of public law that established a precise relationship between private and public rights. The maxim quod omnes similiter tangit, ab omnibus comprobetur (what touches all alike must be approved by all), which derived from a passage in Justinian’s Code, was first developed by the decretalists as a Romano-canonical principle of procedural consent: the right of a clerical member to be summoned before adverse or prejudicial pronouncements were made against him. This was important both as a legal right for the clergy and a canonical rule for efficient church government. In

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civil law the maxim came to be transformed as a general doctrine on consent, affecting both private and public rights. It appears in its general form (though not by literal reference) in Bracton in relation to the writ of summons, as the requirement that all parties who are touched by a case be summoned to appear in court, either in person or through their representatives, and in relation to a number of areas of private law involving common or joint rights, such as rights in tenements or inheritance.111 There is an argument that the maxim, or variants of it, appear in later thirteenth century English statutes as a doctrine on political consent. It helped express what was already practiced: if the king’s business touched the kingdom, it touched all who represented the community and communities of the realm, and all these must be summoned.”112

As a general proposition, judicial procedure, as manifested in Bracton, evidenced the recognition of private rights within the context of public law. More commonly, the principle of utilitas publica was asserted in the defence of the private rights of property. The legist Azo argued against the king’s power to alienate the fief of a vassal without his consent, which would injure both the vassal’s dignity and his rights in the fief; and while this may seem a mere restatement of feudal law, and testament of its survival and intermingling in the reception of Roman law, there is some indication that the protection of the rights of vassals was considered by Azo principally to be a matter of the reason of public utility rather than the enforcement of a right under the feudal contract.113 In another context he argued that utilitas publica, as both the public welfare and public authority, must not be injured by private pacts or agreements entered into by the prince, with the implication that it is both the private rights of subjects and the government’s own authority that would be threatened by the ruler’s private arrangements.114 William of Ockham, though preoccupied more with the right to property ownership within the theory of natural rights, continued the discourse on public welfare in a number of writings generally dealing with the power to create jurisdiction and the restrictions on papal power. Relying upon a passage in the Decretum to the effect that laws should be instituted for the common utility of the citizens, he limited both imperial and papal powers to legislative and executive activity consonant with the common welfare, stating, for example, that “the supreme pontiff does not have the power from Christ to despoil others of their liberties, rights and goods by his arbitrary will.”115

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Given the reversibility of the discourse on utilitas publica—that the idea of the welfare of the people could be used to regulate the exercise of political power, while the exercise of power in the name of the people (by the lex regia) might also define the public utility—it is not surprising that it had an equally constitutive role in the development of the Italian citystates. Political reform in those states, which was directed nominally by the interest and welfare of the popolo, certainly lead to the expansion of the political franchise for the inhabitants of the cities, but this was not necessarily the result of democratic forces or the reflection of republican values. Rather, two purposes animated the institutional political changes. The first was the improvement of the political, military and economic coordination of the city’s leaders so as to expand their authority beyond the walls and into the countryside, the territory upon which the city substantially remained dependent for its survival. In this light the consular, podestà, popolo, and “tyrannical” signoria regimes can be seen as increasingly centralised responses to the recurring problem of family, clan, and guild-based “factionalism”, partisanship or “partiality” (partialitas), whose “winner takes all” conception of political action undermined compromise and posed the most serious challenge to the “common good”.116

The second purpose was to determine domestic policy as a means to divert resources from one class, alliance or coalition to another, given that political authority was a source of economic rent as much as market competition. The creation of political rights served economic objectives, in particular the maintenance of commercial monopolies.117 The language of utilitas publica can be found in the communal statutes, and served to validate the political and administrative institutions that operated under the supervision of a mercantile oligarchy. Its effectiveness can be attributed to internal and external motives. Internally, the concept functioned to legalise acts which might otherwise be unlawful, criminal or offend customs or religious rules. In this sense, it was an aspect of the juridical expression of political power, since it ordained the legislative competence of the rulers in terms of public law. Externally, it entailed the identification of the interests of the dominant political class with those of the public institution.118 Bartolus of Saxoferrato explicated this malleable quality in suggesting the three senses in which utilitas might be termed publica: first, to the extent that it relates to an exclusively public interest, such as the treasury; second, to the extent that it concerns something which is of benefit to the public and private citizen (for example, that a woman should receive a dowry, marry and produce

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children); and third, to the extent that the utility originates from the private individual, but can then be said to relate to the entire community (for example, the economic prosperity of a citizen).119 For the communal jurists there was extensive scope for defining the public welfare, depending upon their ultimate objective, whether to reinforce a particular form of government or system of justice, or to support the economic interests of one civic group over another, or to give effect to a certain idea of public order. The Medieval jurists’ discourse on public law effectively removed the theoretical division separating Roman public and private law. It conceived public right as a normative sphere of juridical regulation that both determined the sovereign right to govern and represented the private rights of individuals. In a sense, though the Medievalists’ starting point was the firm distinction between the public and private spheres, their discourse rendered each so dependent upon the other as to transform the distinction into a governing relationship between the rights of regnum and those of its subjects. This development was initiated by the process of the desacralisation of sovereignty and the construction of the law-centred king. Medieval public right was capable of bridging the public-private division by virtue of a number of hermeneutical strategies: § In its broadest outline, the concept of public law, which in Roman law was more strictly related to public, religious rites and the sacredness of the imperial office, was generalised so as to be pertinent to the status of kingdoms and the needs of feudal monarchs for the recognition of a unitary jurisdiction over territory and its inhabitants. Thus, the ideas of regnum, patria, the crown and the fisc were conjoined as elements of the more expansive and legitimated (in the sense of legally recognised) notion of public law. § As part of the same intellectual process, the theory of the inalienability of sovereignty gave meaning to the sempiternal and inviolable qualities of kingship, quite apart from the representation of the physical ruler and his property. Under the theory of lex regia the inalienability of public office could be construed as the principal consequence of the very nature of the majesty of the king, namely his agency for the benefit of the state. Parnomitanus, a keen follower of Bartolus, explained that what is alienable through acts of positive law is always to be determined by the public utility.120

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§ Whereas the rights of individual citizens under Roman law were recognised and given effect to by private law, the Medieval jurists manipulated the conceptual jewels of Roman public law—particularly in the use of utilitas publica, whose role in Roman law was marginal—to make public law the principal source and ultimate guarantor of individual rights. Once again, the ecclesiastical model of the organisation of Christian society, and the high Medieval corporate legal theory that developed from it, made this possible by acknowledging the individual person through the interests of the collectivity. A gloss of Irnerius on a passage in the Digest dealing with the nature of the ius commune—read in light of passages of commentary from Bulgarus and Placentinus—attributes to the common law the concern with the individual subjects of law equally, to the extent that they are members of a universitas; and although their rights might actually be private in kind, in the sense in which they are enforced through legal actions, to the extent that they assume the same application of laws they are considered to be public rights.121 The normative framework given the title ius publicum was derived from this nominally uniform application of laws to the populus as a distinct juridical entity (iure universitatis).

CHAPTER FIVE NATURAL RIGHT AND LIBERTY

“Reason demands nothing which is opposed to nature” —Benedict de Spinoza “Christianity is a religion of free men” —Alexis de Tocqueville

The Medieval Conception of Natural Law The idea of natural law is so deeply embedded in the Western canon of ideas that it could be said to have had a permanent and continuous historical presence. Nevertheless, our historical method suggests that as a means of placing under scrutiny the entire system of knowledge through which relations of power have been represented in terms of a juridical humanism, we must limit ourselves to a historical analysis of the structural and strategic configurations of natural law, those points of confluence where epistemology and politics meet. In a general sense, the concept of natural law was among the body of received and compiled Roman laws that dominated Medieval jurisprudence from the late eleventh century. The process of reception did not, however, ameliorate the problem of context—more than any other legal concept the Classical understanding of natural law could not take root in the Christianised Middle Ages without substantial reworking. In the first place, Roman law theory conceived of natural law on the groundwork of Stoic and Neo-Platonic philosophical systems, both of which emphasised the nature of mankind as congenerous with the physical, natural world. Ulpian’s definition of the law of nature, as that law which is “instilled by nature in all creatures,” emphasises that “it is not merely for mankind but for all creatures of the sky, earth and sea.”1 In the second place, the prescription of a tripartite schema of legal sources relieved Roman lawyers of the need to expand the concept of natural law so as to encompass a subjective, human reality. The distinctions Gaius makes—which appear in the opening of the Institutes—among the law of nature, the law of the state

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and the law of all peoples relegates natural law to signifying the instincts common to mankind and the natural world. By contrast, the law of all peoples (ius gentium) is treated as a product of natural reason, an attribute exclusive to humankind. The question that interests us here is a most general one: how is it that the concept of natural law, having had a relatively marginal existence between the Hellenic period and the eleventh century—excluding, of course, the doctrinal formulation by Isidore of Seville—came to be a seminal feature of later Medieval jurisprudence? Let us suggest in outline some possible explanations. We have analysed the feudal forms of right in relation to the political context of the feudal age, namely the dispersion of political power and the subordination of public, political space to a hierarchical schema of individual, private relationships. With law reflecting the dominial and proprietary nature of individual rights there was little scope for the development of a higher principle of law derived from a constant and immutable justice. Given that justice was an act of lordship, royal justice reflected both the particular position of the king as the lord of all lords, and its reliance on the ties of dependence that nourished his personal power. As such, “royal lordship emphasized a king’s dynamic powers,”2 a discretionary form of justice characterised by the attributes of temperance and mercy, and modelled on the pastoral function. For example, the Christian king’s divine grant of authority included both the power to defend the Christian populace and the power of correctio,3 a tool first utilised by the Carolingian clergy as means of correcting liturgical texts and producing uniform Christian doctrine. In short, feudal justice derived from the authority of the lord rather than any normative aspect of laws. We have also discussed how the exigencies of establishing royal government around the twelfth century lead the jurists to develop an entire discourse devoted to juridical sovereignty, symbolised by the potent image of the prince as lex animata. If the prince was the incarnation of iustititia, behind the mysticism of this representation lay a conceptual relation that needed to be formulated in the terms of current jurisprudence. This was particularly the case as the early Medieval tension between human nature and divine grace gave way to a new, juridical polarity between the laws of nature and the laws of man.4 Isidore of Seville in the sixth century had already made the equation of divine law with nature—“Divine ordinances are established by nature, human ordinances by usage”5—and for many centuries thereafter divine law and natural law were treated as synonymous. However, in light of Justinian’s text the ideal of justice, which had hitherto been considered the manifestation of divine will and

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reason, could also be correlated with the law that nature dictated for all people. More specifically, the theological valorisation of justice permitted it to absorb the qualities of perpetuity and immortality, qualities that defined both divine and natural laws: “Irnerius says that Justice is constans because natura, or what is naturale, is permanens in it, and this ‘in perpetuum’.”6 Thus, the discourse through which the sovereignty of the prince was formulated gave rise to a new purpose and correspondingly a new significance for the concept of natural law, albeit a result of discursive expediency rather than philological precision. As a general proposition, we can suggest that the language which the Medieval jurists were confronted with in the ancient texts was sufficiently general and imprecise as to provide a semantic base from which to construct a theory of natural law that would operate in harmony with contemporary theological thought. Ulpian’s and Isidore’s emphasis on natural instincts could still be found in the legal literature of the late Middle Ages, but in the process of Christianising the concept of nature the commentators interpreted natural instincts more in terms of moral impulses than animal instincts, and increasingly focussed on the humanistic manifestation of divine forces. The critical starting point for the theological-humanist understanding of natural law was Gratian’s references in the Tractatus de legibus that opens his Decretum: “[t]he human race is ruled by two things, namely natural law and usages. Natural law is what is contained in the Law and the Gospel.”7 There are a number of revealing elements in this distinction. First, the term “natural” is glossed as meaning “divine,” a point surely that did not need explication in light of the fact that the two terms had always been equated, but which emphasises that Gratian intended to merge Isidore’s Classically-influenced conception of natural law with his own theological thesis on the sources of law. In fact, the decretists who worked on Gratian’s theory of natural law specifically endorsed and repeated the principle that God, as the highest nature (summa natura), must be the source of natural law, thus allowing them to converge the two concepts, ius naturale and divine reason, in the formula, “Natura, id est, dues.”8 Second, Gratian’s specific reference to the laws governing the “human race” is initially explained in terms of natural law “which possesses the greatest antiquity and dignity since it began with rational creatures themselves.”9 To be sure, the association of natural law with human rationality may be traced back to Classical Roman literature: recall, in particular, Cicero’s statements that “true law is right reason in accordance with nature,” and that to disobey natural law is to flee from oneself, to

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deny one’s human nature.10 However, Gratian qualifies the association of nature and human reason in terms of its purely moral dimension, as is made clear when he approvingly cites Isidore’s argument that “Divine ordinances are determined by nature” and “Morality is divine ordinance.”11 For our purposes the most interesting discussion of natural law in the Decretum occurs in Distinctions 8, 9 and 10, where Gratian sets up a hierarchy between natural law and human law. In Distinction 8 he propounds: Now natural law similarly prevails by dignity over custom and enactments. So whatever has been either received in usages or set down in writing is to be held null and void if it is contrary to natural law.12

It is a curious fact that Gratian cites as his authority a specific passage from Augustine’s Confessions in which Augustine argues that if God commands a nation to do something contrary to its customs or constitutions, it must be done even if it has never been done in that country before…For all must yield to God just as, in the government of human society, the lesser authority must yield to the greater.13

Viewed on its own, the passage does seem to support Gratian’s intention. However, it appears in the Confessions in the context of a discussion of sins against nature, and considered contextually it is apparent that Augustine is not specifically concerned with the conflict between customs and enactments on the one hand and natural or divine law on the other. Rather, he is making a direct reference to the relationship of obedience between the individual and divine commands, a relationship that is ultimately played out within the individual soul and through the intermediary of human nature: Your punishments are for the sins which men commit against themselves, because although they sin against you, they do wrong to their own souls and their malice is self-betrayed. They corrupt and pervert their own nature…14

In distinction 9 Gratian makes the point that, as with customs and usages, enactments must yield to natural law. This leads to Distinction 10, in which Gratian proposes that the enactments of princes are subordinate to ecclesiastical enactments, citing as authorities the writings of early popes and theologians associated with the ecclesiastical hierarchy. We can observe in the strategic use, and in some cases manipulation, of canonical

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sources the progression of a set of arguments based largely on inductive reasoning and semantic generality. There is of course no logical relationship between the propositions, that natural law prevails over the enactments of princes, and that the enactments of princes may not abrogate ecclesiastical laws. However, Gratian makes a number of conceptual equations and linguistic associations that, considered in aggregate, have the effect of making this leap in logic feasible: § natural law refers to divine law, that contained in the “Law and the Gospel” (D.1, C.1.1) § morality is divine ordinance (D.1, C.1.2) § natural law is “God’s truth,” truth being opposed to both falsehood and evil (D.9, C.1) § truth and reason are part of or manifestations of natural law (D.8, C.7) § the law of the Church reflects divine ordinance (D.10, C.1 case) § ecclesiastical enactments, such as the “canons and decrees of the Roman bishops” (D.10, C.4) may be equated with “evangelical or canonical sanction” (D.10, C.1), or “evangelical, prophetic, or apostolic norms” (D.10, C.2). The result is that for Gratian, and for the whole tradition of canonistic writing that was spawned by the Decretum, the superiority of divine law over human law meant not only that in times of conflict, customs, imperial ordinance and royal legislation had to give way to the holy scriptures and established canonical principles, but also that the ordinances and legislation of the Church, as the exclusive, earthly guardian of God’s truth, would similarly prevail over human law, understood in this context as the secular law of princes and customs. This argument was supported by the Roman law understanding of the law of nature as prescriptive of human reason and truth, upon which was imposed the Christian equation of reason and truth with the moral norms of the Church and the revealed truth of Mosaic Law and the Gospels. Whatever the logical cohesiveness of the argument, Gratian’s collation of principles and sources established the foundation for a theory of papal supremacy that was to hold influence for at least two centuries.

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For the civilian lawyers the Classical legal concept of ius naturale was a more direct inheritance. Confronted with the multiple and inconsistent terminological uses in the Roman texts, however, the legists emphasised the association of natural law with human reason, and the function of reason in impelling men to create laws. It could thus be argued that natural law was at the root of both the ius commune and the ius gentium as products of human creativity and social utility. Where for the canonists the association of the natural, physical world and ius naturale was determined by the identification of nature with God, and thus the principles of justice with the divine will—Isidore’s phrase “secundum naturam id est secundum Deum” appears frequently in Medieval legal literature—the glossators were more inclined to express the connection through the concepts of causa naturalis and aequitas, terms that were used interchangeably.15 For Azo the ius civile pertained to all laws used by the civitas, and in the sense that human reason, through equity and the principles of justice, participated in the creation of laws, the ius civile was “a most holy thing.”16 This view was part of a broader current in the valorisation of public right. By the fourteenth century the idea, emphasised in Thomas Aquinas’ legal theory, that the will of the prince must be informed by some reason, ensured that the normative function of the concept of reason would extend beyond the domain of law into that of government. In the jurisprudence of the legists the value of the concept of natural law lay less with its role as a legal source than with its use as a discursive tool for theorising the parameters of the prince’s authority. The argument that the ratio principatus needed to reflect natural law had the effect of legitimising the “natural” disposition of the respublica, and thus aligning the function of the prince with the reason of public law and public utility, rather than directly affirming the supremacy of natural law. That natural law had made possible the ius gentium and through this the public law, permitted Accursius, among a number of other writers, to claim as a principle of nature the right of the respublica to defend itself against attack, in other words, the right to wage a just war of defence. Similarly, Ptolemy of Lucca argued that the king’s right of taxation was de iure naturae to the extent that it was necessary for the conservation of human society, this necessity being reflected in the king’s duty of caring for the common weal.17 The legists’ assimilation of natural law with public law, though technically unfaithful to the conceptual divisions inherent in Roman law, was sympathetic to the new, normative function of ius publicum that we have already analysed.

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The Problem of Property From the late Renaissance through to the Enlightenment the issue of property ownership recurringly featured as a problem in discourses on sovereignty and individual rights. At the height of this period, during the late sixteenth and early seventeenth centuries, political philosophers increasingly focussed on the internal constitution of sovereign power as a means of formulating a theory on the autonomy of the state outside of the two dominant political paradigms, those of imperium and dominium. As Blandine Kriegel has suggested, the early modern theory of the “law of the sovereign state aims at two targets simultaneously: externally, it fights against the imperial idea; internally, against the feudal world.”18 Among the treatises of this genre was Jean Bodin’s 1576 publication, Six Books of the Commonwealth. Though recognised principally for its thesis on political absolutism, Bodin’s text also demonstrates a distinct preoccupation with the limitations on sovereign power. Putting aside the immediate concerns posed by the Huguenot religious revolution and the surrounding constitutional controversies, the broader historical context of Bodin’s thinking was the ever present threat to royal authority from the vestiges of feudalism that survived in Europe, notably in the form of the papal fief but also through certain institutions of the royal state. Comparing the feudal basis of despotic monarchy—“in which the prince is lord and master of both the possessions and the persons of his subjects”19—with slavery in antiquity, Bodin sought to sever the link between property ownership and political power. His historical and sociological method was to conceive of the potential legal and political arrangements necessary to establish and maintain sovereignty as “that absolute and perpetual power vested in a commonwealth which in Latin is termed majestas.”20 As an absolute power the sovereign “cannot in any way be subject to the commands of another,” and given that the pre-eminent attribute of sovereignty is the legislative power (of making, abrogating and amending laws), the prince is bound neither by the laws of his predecessors nor those of his own. However, Bodin repeats throughout the treatise the point that this absolute power of princes and sovereign lords does not extend to the laws of God and of nature. Indeed, his typology of political constitutions is organised around a fundamental antinomy between legitimate (royal monarchy) and illegitimate (despotic or tyrannical monarchy) forms of commonwealth, the former being defined in terms of the circumscriptive function of divine law and natural right:

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By contrast, he argues, the assertion that sovereignty empowers the Pope or Emperor to “take the goods of their subjects at will” is a reference to “the law of the jungle, an act of force and violence,” for “absolute power only implies freedom in relation to positive laws, and not in relation to the law of God.” It is precisely because the prince lacks the power to exceed the laws of nature, being decreed by God Himself in whose image he is, that “he cannot take his subjects’ property without just and reasonable cause.”22 The two principles, that the right to property derives from nature and that sovereign power is subject to natural law, were certainly not novel to the sixteenth century, and it is significant that they nonetheless appear in a thesis on absolute political authority where they are not necessary to the logic of the argument and in fact create the potential for internal inconsistency. These ideas were first considered by the Medieval jurists of the twelfth century, albeit in a completely different socio-political context, and for reasons which we will consider remained fundamental assumptions of political theory until the decline of the natural law school in the eighteenth century. The Medieval jurists working on a theory of the origin and nature of property were confronted with two distinct traditions. On the one hand, there were the general Roman law principles from Justinian’s compilation which, though not in themselves yielding a harmonious and systematic theory of property rights, gave rise to numerous tracts of commentary: § According to Ulpian everyone is born free under natural law, whereas servitude is an institution of the ius gentium.23 § According to Gaius the institution of property belongs to the ius gentium, that “law which natural reason makes for all mankind.”24 § According to Gaius ownership (dominium) over things without owner (res nullius) is subject to the right of first acquisition: “[w]here something has no owner, it is reasonable that the person who takes it should have it.”25

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The civil lawyers of the twelfth and thirteenth centuries did not display any special concern for determining definitively whether or not individual property ownership was sanctioned by natural law. Some of the legists worked on the assumption that if the right of private property could not be traced back to natural law, nonetheless there was sufficient authority to sanction its existence within the Mosaic law, particularly the commandment prohibition on stealing. Irnerius and Azo could accept that by nature property was held in common and still claim the licitness of private property as an institution of the ius gentium, both by maintaining the Roman law distinction between ius naturale and ius gentium and at the same time binding them with the concept of reason. Whereas nature referred to the primitive state in which man had no need of property rights, with the organisation of societies mankind was impelled by nature through natural reason to formulate both laws among people (ius gentium) and the laws within the state (ius civile).26 The participation of natural reason in human laws was the conceptual mechanism used to ameliorate the fact that ius gentium could decree something contrary to the laws of nature. The result was a direct connection between natural law and private property rights without denying the assumption of primeval common property. On the other hand, there was the canon law tradition, which, for its intensive interest in the harmonisation of principles, experienced even greater difficulties in establishing a consistent position on whether natural law sanctioned property ownership. In one passage of the Decretum Gratian argues, quoting Augustine, that “by natural law all things are common to all people,” so that private property emerged from human laws—custom or legal enactment—rather than nature.27 However, later canonists tended to avoid the potential consequence of property ownership being a contravention of natural law and thus divine law, one that obviously would have compromised the legitimacy of the Church’s own economic and political positions. Brian Tierney has observed that where the Classical Roman lawyers treated the beginning of private property as merely a fact to be recorded and thus as unproblematic, the canonists seeking to explain the origin of private property encountered a major problem, largely the consequence of the conflicting sources assembled by Gratian.28 In fact, the problem of the origin of property gave rise to three related issues that challenged the coherency and applicability of canon law: first, whether property ownership was ever licit; second, whether a man in need, such as by reason of poverty, had a right to the use of another’s surplus property; and third, whether the king could appropriate his subjects’ property arbitrarily.

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The question of the licitness of property arose as a consequence of the convergence of the theory of common property by nature with the patristic belief that the fall of Adam brought the state of nature to an end and initiated an age of human compacts and laws. On the basis of this convergence private property could be seen as an iniquitous necessity, either a means of regulating sinful human behaviour or a form of penalty or reparation for the human condition of sin. Once again, there was a tendency to neutralise the polarity of the Adamic state and the fallen condition of man through the bridging concept of natural law. The twelfth century canonist, Huguccio of Pisa, resorted to the scriptural texts, such as the story of Cain and Abel, for evidence of the sanction of private property, but also offered alternative and more scholastic proofs. He countered the claim that the natural state of common property rendered individual possession illicit with the argument that natural law merely permitted common property rather than prescribe it; in other words, natural law did not thereby prohibit private property. Further, while common property had the seal of reason in the sinless state, in the post-fall human condition “the natural law of reason favoured individual acquisition.”29 Similarly, Innocent IV in the middle of the thirteenth century stated that dominium was a right by the natural law of reason, with the different forms simply being instituted by the civil law as a provision for bringing actions upon the right.30 There is an inherently political foundation to these doctrinal questions, though it was not until the controversies surrounding the Franciscan interpretation of Christ’s poverty in the early fourteenth century that the issue of property became the subject of concerted polemical discourses, igniting the interest of theologians as well as jurists. The controversies began when St Francis’ purely ascetic rule that the brothers were not to appropriate any possessions for themselves was reinterpreted through the paradigm of civil law, notably in the works of Pope Gregory IX and St Bonaventure. In his 1279 bull Nicholas III purported to settle conclusively the question of the legitimate interpretation of Franciscan poverty—“the renunciation of all things, both personally as well as in common”31—by prohibiting glosses on his text. It was in 1322, with Pope John XXII’s reversal of Nicholas III’s bull and the formal return to the order of the goods whose ownership had, under Innocent IV, been transferred to the papacy, that the question of monastic poverty lead to doctrinal treatises discussing both the theological and legal justifications and ramifications of apostolic poverty, effectively uniting the papacy and Dominican scholars in opposition to the Franciscan claim of the renunciation of property.

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For our purposes, what is most interesting about this dispute concerns the discursive use of legal concepts, notably dominium (dominion), usus (use), proprietas (ownership), potestas (power) and ius (right). At the heart of the problem of apostolic property lay the relationship between dominium and ius: how might it be said that ownership is a right, or may be exercised as of right (de iure), under natural law? To understand the interpretive scope of the concept of dominium that was open to the thirteenth and fourteenth century jurists and theologians it is necessary to recall the inheritance it derived from the feudal age. We have already noted that at a time when economic and personal relationships were based on the various uses of land, these uses were formulated in accordance with legal categories, and each use could be considered a type of right. There was often a multiplicity of rights pertaining to the same parcel of land, depending both on the uses to which it was put and the relations among the individuals connected with the estate. The collection of rents and levies, the power of jurisdiction and the personal service due to a lord were as much rights as that of exclusive possession of land. In turn, rights were considered physical entities (res), which, as with land and goods themselves, were capable of being granted, gifted, sold, leased or otherwise dealt with. The feudal concept of dominium was at the same time broader in scope and less effective as a legal form than under Roman law: it was broader in scope in the sense that ownership of landed property ordinarily entailed a group of rights, obligations and entitlements rather than mere exclusive possession; by the same token, it was less meaningful to speak of ownership of property in the feudal age, which tended to be subsumed by a hierarchy of personal bonds and various forms of tenure or seisen. The Franciscan argument that the order practised the highest poverty was based on the distinction between ownership and simple use: in imitating the life of Christ the Franciscans renounced all rights under the civil law, in particular, ownership of possessions, and retained only a simplex usus facti in the goods they used. This argument was refuted by a number of scholars, among them the Master General of the Dominican order, Hervaeus Natalis, in a treatise titled Liber de paupertate Christi et apostolorum (The Poverty of Christ and the Apostles) that was submitted to Pope John XXII as advice towards his controversial 1323 bull, Cum inter nonnullos. Harvaeus’ refutation of the Franciscan argument revolved around the definition of the terms “dominion,” “ownership” and “right,” which he presented as signifying fundamentally the same idea: “the power over something by which one is able licitly to use a thing or transfer it— either in giving it away, selling it or in some other manner.”32 The crucial

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distinction for Harvaeus then was not so much that between ownership and use as that between a power in fact or action (potestas facti) and a licit power (potestas licite), the former being a mere power of doing with respect to a thing while the latter being the actual power of right to a thing. On his analysis the claim to use a thing licitly while not having dominion over it is based on false reasoning, since one must have a right to the use of anything thing that he or she licitly uses, particularly with regard to things that are actually consumed in use (which was the primary subject of the Franciscan position). Even if its jurisprudential premises are not fully explained, Harvaeus’ reasoning clearly is dependent upon the feudal interpretation of right as dominion—as a legally recognised power or mastery over a thing. Where it diverges from earlier conceptions of dominium is the almost imperceptible move towards an ontological foundation for proprietary rights: to have dominion is no longer merely a legal fact; rather, the possession of rights conforms to an inherent power of the individual with respect to both actions and objects. There is, of course, nothing entirely novel in Harvaeus’ approach of combining jurisprudential and ontological concepts, and if we mention him in this respect it is simply to demonstrate the specific intellectual atmosphere under which these types of discussion on poverty and property were able to take place. We know that at the time that Harvaeus was writing there was already a well developed discourse on human conscience and synderesis as products of natural law. The twelfth century canonist Rufinus wrote of natural law that it established a natural force (“sparks of justice gleaming from dying embers”) in the human being for doing good and avoiding the contrary. Shortly after, Simon of Bisegnano equated natural law with “[t]he superior part of the soul, that is, reason itself, which is called synderesis and which Scripture tells us was not able to be extinguished even in Cain.”33 Many intellectual historians look to the work of William of Ockham for an origin, or at least a turning point, in the subjective understanding of right. Indeed, his work on political and legal theory has been the subject of contention on two counts: on the question of whether there is any direct relationship between it and his nominalist philosophy; and by virtue of the apparent inconsistencies between the early and late writings, the extent to which this indicates a change in philosophical position. Without being particularly concerned with these hermeneutical questions, we nonetheless might agree that Ockham’s ideas on right constitute a summation of the possible conceptualisations of the relation between ius and dominium, a legacy that is most notable in sixteenth century political theory. Let us

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merely make brief reference to three innovative turns of thought in his political writings.

The heterogeneous concept of dominium At the time that Ockham addressed the issue of Franciscan poverty the dispute was marked by the opposing views on the natural condition of mankind, with Pope John XXII maintaining that the right to property originated in divine law and thus was inalienable, and Bongratia of Bergamo arguing that individual property came to exist through human iniquity rather than by natural law, and thus might be renounced. Ockham, whose ultimate aim was to challenge John XXII’s position and defend the Franciscan thesis on the evangelical renunciation of all property ownership, avoided the strictures of this polarity of reasoning by further scrutinising the central concept in the dispute. While it is true that, according to the scriptures, in the original condition God had granted Adam and Eve dominion, this dominion was not in the form of a right to property but in that of a rational power of ruling and governing over other living creatures.34 The semantic division of the concept of dominium allowed Ockham to avoid having to denounce that there was any dominium in the state of nature—a point on which contemporary canonistic thought generally concurred—while at the same time refuting the papalist thesis on the divine and natural right to common property. For its novelty and efficacy in bringing a new perspective to the dispute, the terms upon which the distinction between the two forms of dominion was based were not particularly controversial. Harvaeus himself had felt it necessary to explain the differences between dominion and ownership.35 The interpretation of dominion as a power of use over something arguably is general enough to encompass Ockham’s natural right to rule, the common dominion of Adam and Eve. The significance of this argument in relation to the Franciscan dispute is that it cleared the way for proclaiming the existence of a natural right of use that could be distinguished from property ownership. This right of use, which had been circumscribed by the law of private property to apply only in the event of need, might also be operative in the case of use in accordance with the licence of the owner.36 This was the plight of the Franciscans, who in their use of things did not thereby inherit new rights but merely exercised their natural right, either by reason of need or as licencees, without at any time having rights of property.

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The two powers If we bear in mind that the principal concern of Ockham’s political writings was to challenge the hierocratic government of the papacy—in this respect, even his position on poverty can be seen as a response to the threat of papal interference in the affairs of his order—the divergences that appear in his thinking may easily be understood in terms of the specific political problems with which he and his contemporaries were faced. In the process of refuting the papalist argument posed by theologians such as Giles of Rome that all dominium, including the right of ownership, derived from the pope, Ockham proposed the idea that humans had been invested by divine grant with two powers: the power to acquire property, and the power to institute rulers.37 Each respective power could be distinguished from its temporal counterpart. Thus, while the power to acquire property was natural and inviolable, actual ownership of property was an invention of human law; similarly, while the power of instituting rulers derived from God, the jurisdiction itself was a human contingency. It was with this last distinction that he attacked the hierocratic thesis, since if the power to establish temporal jurisdiction was a direct grant from God, it was not tenable that the pope could be the source or mediator of secular government. In reframing the problematic of dominium in terms of human powers under natural law, Ockham affirmed a new direction in political theory. There occurred a displacement of the significance of the idea of right as ownership in theological-political discourse in favour of the idea of right as an inherent power (potestas). There is no necessary connection between the acquisition of property and the establishment of temporal rule. However, as we have seen, the feudal association of political power and property in the phenomenon of jurisdiction rendered the theoretical treatment of one set of rights without the other untenable. Moreover, the political context in which Ockham developed his theory of natural rights— both the controversy over Franciscan poverty and the more general dispute over the source of temporal government—goes some way to explaining the relevance of property rights to the right of establishing political authority, albeit in this new, inverted mode of natural powers. In particular, the idea of these correlative powers under natural law would appear in the theories of the sixteenth century Spanish theologians whose writings reflected the quite unique problems created by the discovery of the American Indies. Bartolomè de Las Casas, an ardent critic of the colonial practices of the Spanish crown, defended the idea that even infidels possessed the natural right of liberty, citing, among the many

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juridical sources, the Isidorian reference in the Decretum to “the identical liberty of all” as an example of natural law. In further explaining the thesis that liberty was a right, Las Casas referred to the right to property and the right to institute rulers by consent as aspects of the fundamental right of liberty.38 On the question of the illegitimacy of Spanish rule in the Indies, Las Casas upheld the immutability of the natural rights of the Indians as against the lordships and jurisdictions granted by the pope to the Spanish crown; the latter constituted a mere ius ad rem (right to a thing) rather than a ius in re (right in a thing), whose realisation depended upon the consent of the Indian people.39

Natural liberty and natural right Ockham’s references to evangelical liberty in the argument on the obligation of the pope to protect the natural rights of his subjects relied more strictly on the canonistic interpretation of ius as a power reflecting the autonomous and inherent sphere of divinely gifted freedom than did the theories of contemporary theologians. The popular thesis on the plenitude of power held by the pope as minister of Christ was challenged by Ockham, but not on the more common grounds of the lex regia or the sovereign right inherited from the Roman imperium, in other words, by reverting to the regnum-sacerdotium contest; nor was it by reliance on the doctrine of an original transfer of authority from the Roman people, as was prevalent among the jurists before him. Instead, he saw such power to deprive lay individuals of their property without fault or cause as contradicting divine and natural law, in particular, the “liberty of evangelical law.”40 With Ockham we see more clearly the development of a line of thought in which natural right is bound up with the idea of a primordial space of liberty. This was the culmination of the many strands of argument involved in challenging papal hierocracy and defending Franciscan poverty, to be sure, but it also reified a new tendency for theorising the state of nature as a means of legitimating limitations on princely powers. This tendency may be seen, albeit in a more spiritual mode, in the political theory of John Wycliffe. Starting with the accepted theological premise that human laws and political institutions were necessitated by the fall of the human race, Wycliffe argued that just as all human law presupposes divine law as its cause, all dominium under human law presupposes a dominium which is justum quoad deum; in this sense, those persons who are in a state of mortal sin rather than grace or charity cannot be said to possess true dominium.41

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For the jurists of the twelfth and thirteenth centuries writing on the subject of sovereignty, the concept of dominium served to explain both the public nature of the prince’s ruling authority and the necessity of protecting individual rights. In the first instance, not only was the political power of the emperor (imperium) contrasted with the proprietary authority of lordship (dominium), but it was also imperative, in accordance with the doctrine of the status regni, that sovereignty prevail over the rights of the dominus at times when the status of the realm was at stake. In other words, the public estate of the prince, from which the public revenues derived, was such an integral part of governing and defending the realm that the sovereignty or majesty of the imperium could only be conceived on the basis of a distinction between the prince’s private property and the public fisc or treasury. An anonymous fourteenth century French treatise raises the distinction between the ordinary revenues of the crown, which were justified for great purposes such as the defence of the country or the administration of justice, and the extraordinary, in the context of the prince’s jurisdiction; Except for public purposes, no king or prince may impose such taxes; and if he does so, the subjects are not bound to obey, for he is exceeding the limits of his power.42

In time of war, when there was cause or necessity, what concerned or touched the prince could expand to encompass the private property of his subjects. Most jurists unequivocally accepted this exceptional aspect of the prince’s authority, under which the legitimacy of expropriating private possessions or imposing extraordinary levies was uncontroverted. In the second instance, the rights of individuals that were given effect to by the civil law were in fact protected by public right, which in turn was informed by natural law. Thus, the idea that dominium was a right according to natural law lead the jurists to hold that the prince had no ordinary power to arbitrarily deprive a citizen of property. The thirteenth century Roman lawyer Odofredus summarised this well-observed principle in the comment, I do not have dominion from the prince that I have acquired from my lord through ‘traditio,’ but from natural reason. The emperor cannot abolish natural reason.43

Odofredus had been influenced by Accursius, who in an earlier vein of thought limited the emperor’s jurisdiction—expressed in the Justinian maxim, cum omnia principis esse intelligantur (all things are understood

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to be owned by the prince)—to his private patrimony: “[c]onsequently the prince does not own my book, and I may initiate legal action to recover it directly; the prince may not.”44 The two aspects of sovereign power—the supremacy of imperium over dominium, and the duty to protect the individual’s right to property—were rarely seen to be contradictory, since for the jurists what was paramount was neither the absolutist elevation of the authority of the prince nor the untrammelled protection of the rights of his subjects, but the defence of the inviolability of public right, from which derived the legitimacy of both the rights of sovereignty and the private rights of individuals.

Judicial Process and the Rights of Liberty There was no homogenous concept of liberty in late Medieval law. The term was used in multiple senses and contexts. The generic reference in the Decretum to the rights of liberty (iura libertatis)—reflecting the combined theories of natural law and evangelical liberty that derived from the Isidorian tradition—on its own may have had little practical effect on the application of civil law and legal procedures despite being influential in the canonistic literature. On the other hand, as one aspect of the pioneering role of canon law and of ecclesiastical forms of justice between the twelfth and fourteenth centuries, there was some continuity in legal language and legal processes in the use of the idea of liberty. Further, the way that jurists from the sixteenth century on understood and applied the concept of liberty was influenced as much by the Medieval discourse on natural rights as by the doctrines and practices of legal procedure that were developing in late Medieval justice systems. The right to liberty was considered the correlate of the natural right to property. The two rights appear side by side in Isidore’s definition of natural law and were often discussed in the same context in the application of natural law. There are a number of reasons for this. First, the association of ius with evangelical liberty suggested that liberty and property derived from the same source—the theologian Jean Gerson, having defined natural right in terms of the doctrine of evangelical liberty, referred to both liberty and dominion as God-given rights.45 Second, as we have suggested in relation to Ockham’s thinking on rights, the ideological move towards seeing rights as powers provided a common, ontological ground for inherent rights such as dominium and libertas. Third, the language adopted in the course of the Franciscan poverty disputes to explain the concept of dominium—now signifying a power or mastery of action in relation to the use of things, rather than the more static idea of a right of ownership in

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property—found a parallel current, if not a source, in the new theological thinking on human conscience and free will, which would inform all later theories of individual liberty. The association of liberty with dominium set the context for the theoretical treatment of other modes of freedoms, such as the right to selfpreservation. The late thirteenth century scholastic philosopher, Henry of Ghent, considered the theme of self-preservation in a discussion on the respective rights of a judge and a criminal over the condemned body. While the judge had a power or right over the criminal’s body in the sense that by his authority he might exercise some act or use concerning it (capturing, imprisoning and killing the criminal) he did not have a right in the sense of the substance of the body; it was the criminal who held the power of using his body so as to preserve its life, provided this did not entail harming another.46 In a sense, Henry’s reference to the criminal’s proprietary right in his body as justifying a right of self-defence even against a legally-sanctioned judgment is an extension of the contemporary theoretical distinction between right as dominion and right as a power. Henry argued, as others had done before him, that a person might licitly take from another anything necessary to sustain his life. Applying this argument to the prisoner’s dilemma, it is clear that a criminal may take all necessary measures to preserve his life, and that such action would not thereby violate the judge’s right, simply because the judge’s right over the criminal’s body is one of use rather than property ownership, whereas the criminal’s right is that of proprietas.47 The fact that the canonistic idea of liberty as a natural right had absorbed Medieval theories of property and dominium rendered it valuable for the Spanish scholastics in the sixteenth century whose political thinking was entirely bound up with the ramifications of ideas on the state of nature and the acquisition of property. Las Casas defined liberty as “a right necessarily instilled in man from the beginning of rational nature and so from natural law.”48 Certainly, if only implicitly, this position challenged the prevalent Aristotelian theory of slavery being sanctioned by natural law. Thomas Aquinas had already modified this theory in holding that slavery, like the institution of government and property, could be legitimised through natural law by virtue of having derived from natural reason, even if not present in the state of nature. In discussing the rights of the American Indians as against the claims by the Spanish crown, Francisco de Vitoria chose to adopt Thomas Aquinas’ language on natural reason, arguing that just as slavery in some circumstances was supported by natural reason, so too was the dominium that every person had in himself. The right to mastery or ownership of oneself that followed from

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human nature also entailed for Vitoria a right or dominium over other (non-rational) aspects of nature; in this way, the juridical-political validation of human freedom and property ownership were conjoined through the same language and conceptual logic. Confronted with Vitoria’s neo-Thomist arguments on liberty, and having a more direct concern with defending the Indian populations against the Spanish king’s grant of property and jurisdiction to the colonists, Las Casas elaborated a more directly political thesis on liberty as a natural right. In the first place, the freedom that existed in the state of nature was inseparable from the natural reason exercised by individuals. In the second place, the same natural liberty was the source both of the individual’s dominium over himself and the people’s capacity to voluntarily consent to being governed by a ruler. The effect of these two principles was to render human liberty inalienable, and concomitantly to restrict the alienability of property by the prince. By the time of Suarez, the right of self defence—considered in Vitoria’s terms as the natural dominion a person has over his own actions—was both an inalienable right and a fundamental precept regulating the individual’s relationship with political authority. Because the right to property was protected by natural law, a king could not arbitrarily alienate a private individual’s property. Because the individual had ownership in his body and mastery over his actions, a magistrate’s power was merely a jurisdiction that could be exercised in accordance with just law; it did not reflect the relationship of a master to a slave. Finally, because every person and community by nature had a right of selfdefence, the individual could defend himself and the state against a tyrannical ruler, to the extent of licitly killing a king who waged war against the commonwealth and its members.49 The natural right to justice also emerged in the late Middle Ages through the vehicle of the canonists’ development of the doctrine of natural law. There were a number of historical conditions for this emergence. At least since the eleventh century, when the see at Rome commenced a process of legislative and judicial centralisation, the Church was concerned with the integrity and efficiency of administrative and judicial procedures, particularly those concerned with the papal curia. The comparatively well organised and transparent form of these procedures, made feasible by the Church’s historic connection with the text and written record, encouraged the use of papal justice by litigants in secular as well as ecclesiastical matters, which in turn stimulated further

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developments. The most important of these developments was the Romano-canonical procedure, the ordo iudiciarius. As a parallel movement, secular rulers, who in the twelfth century began to centralise their judicial systems as a means of consolidating political power, increasingly introduced aspects of the Romano-canonical procedure into their courts, a fact that may be partly explained by the extent of clerical involvement in lay justice. The reception of this procedure throughout Europe, as crucial as it was in the development of the ius commune, did not establish a uniform judicial procedure for all courts, given the many local differences that resulted from the government of various rulers and the application of regional customs. Nonetheless, its two dominant attributes—the reliance on ecclesiastical letters and written records, and the use of procedural terminology and concepts—did introduce a level of standardization in judicial procedure that partly reflected the relative uniformity of the bodies of Roman and canon laws.50 At a more specific level, what instigated the widespread adoption of the Romano-canonical procedure among ecclesiastical and secular courts was the growing disaffection with other modes of proof, namely the various types of ordeal. We have already examined some of the factors that contributed to the gradual move away from the ordeal as a mode of proof. In the first place, the inquisitio, as both an administrative and juridical mechanism, came to dominate the process of the settlement of disputes as sovereigns sought to appropriate the lucrative rights of jurisdiction that had devolved into the hands of feudal lords. The model of the inquiry reconstrued the function of litigation, the role of the king in local justice and the nature of truth as an object of legal knowledge, all of which challenged the customary foundation and conceptual rationale for the ordeal. In the second place, the new concerns with the interpretation of Roman law and the reconciliation of discordant texts lead civil and canon lawyers to question the function of local and predominantly oral customary laws, including those relating to judicial process, in favour of more systematic and uniform procedures based on written forms. The revival of the study of Roman law in the twelfth century prompted jurists mostly to avoid non-Roman legal institutions, particularly in the area of legal proof in which there was a clear preference for the use of documents and witnesses. Canon lawyers were more conspicuous on the issue of the ordeal. Even before the Fourth Lateran Council of 1215, by which clerics were forbidden involvement in judicial tests and ordeals, some canon lawyers denounced customary evidentiary practices: ordeals were considered sometimes common purgations (purgationes vulgares)—“semi-complete

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proof only to be used when full proof was lacking”—and at other times iudicia peregrine, “judgments foreign to the law of the church.”51 The extent of the canonistic commentary on the ordeal, no less than with the Canon of 1215, suggests that customary proofs were not merely prevalent during the twelfth and thirteenth centuries but also directly touched the Church, including in relation to ecclesiastical legal proceedings. Some canonists attempted to limit the application of ordeals only to the most notorious or heinous crimes, while others focused on the nature of the available evidence, such that it could be utilised only where the verdict was inconclusive and the rational methods failed. A common rationale for avoiding the ordeal was that its administration involved the commission of a sin to the extent that in requiring constant miraculous intervention it effectively tempted God, a prescript provided for in a number of biblical passages. By the time of the Fourth Lateran Council the arguments against ecclesiastical (if not secular) involvement in ordeals were well documented by significant authorities including the Parisian theologian, Peter the Chanter, the canonist, Huguccio, and Pope Innocent III himself, the convenor of the 1215 Council and dominant proponent of the doctrine of papal supremacy. It was in this historical milieu that the Romano-canonical procedure gradually gained influence. The canonist Stephen of Tournai defined the ordo iudiciarius in terms of the manner of summoning a defendant, the written presentation of the accusation, the production of legitimate witnesses, and a written decision rendered only in the cases of conviction or confession.52 Lacking substantial evidence of its relevance to secular judicial procedure in the twelfth century, we can only surmise that it constituted one part of the struggle between the ius commune that was emerging from the concentrated study of Roman law and the feudal customs that still dominated the settlement of disputes at the local level. What is more certain is that the association of the Roman-canonical procedure with the doctrine of natural law around the thirteenth century provided the impetus for establishing an individual right to an action as another limitation on the power of the prince. In Roman law, legal procedure or actiones was part of the civil law, a position confirmed by Accursius in the thirteenth century. As such, it was both a reflection of and subject to the prince’s authority as lex animata. As jurists increasingly became concerned with the nature and extent of sovereign power, and as this power came to be seen as manifested through public right, fundamental private rights such as the right to trial were scrutinised through the lens of natural and divine laws. Two distinct approaches may be discerned from the literature. The first was the

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argument that while the prince had the power to deny an individual a civil action, he could not deprive his subjects of justice, given that under the Medieval interpretation of the lex regia the prince was bound to serve as the minister of justice and for the public utility. The second was the argument that the denial of civil actions based on contract or property would contravene natural law to the extent that both legal domains belonged to natural law rather than civil law. This type of argument was suggested by the jurist Odofredus de Denariis in his commentary on the Code of Justinian. He argued that the emperor could deny an action for recovery of a right derived from the civil or praetorian law, but not one derived from the law of nations. Moreover, given that the emperor could not take away one’s dominion of a thing (property ownership belonging to the law of nature), it was arguable that he could not remove the right to bring an action to recover it. Guido of Suzzara, in his glosses on the Digest, reified this connection between a right protected by natural law and the ability to pursue an action on this right in court. However, Guido went further to suggest that the right to an action itself was protected by natural law, with the consequence that the prince could deprive a subject neither of his property without just cause nor of his right to defend his property.53 In the ensuing jurisprudence the topic of the right to trial assumed importance as a demonstrative principle of the function of natural law and public right in circumscribing the will of the prince. The French canonist Johannes Monachus, commenting upon a decretal of Boniface VIII, argued that since the pope was above positive law but not natural law, and given that the process of the summons had been established by natural law, no judge including the pope could arrive at a just decision without having summoned the defendant before him. Even in the case of particularly notorious crimes, in which there had persisted an established practice of summary proceedings, the elements of the summons (citatio) and judgment (sententia) could not be dispensed with in the exercise of justice. For Johannes, the right to have one’s case heard was not only grounded in the precepts of natural law but was also consonant with the public nature of the right to judge: as a public person, a judge “should learn the truth publicly,” and the prince’s will only has the force of law when regulated by reason. 54

Liberty and the Christian Free Will As a juridical-political concept, sovereignty expresses a purely external relationship of dependence: it is always a question of the extent to which

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the individual reflects the characteristics of a sovereign, or more specifically of the conditions that need to be fulfilled for the prince to exercise sovereign power by right. It is in this sense that in Medieval political theory the prince was always necessarily in an external or divorced relation with sovereignty. In fact, as we have observed, the theory of the inalienability of sovereign right determined precisely that the private person of the prince had to be kept distinct, conceptually and in practice, from the public majestas of his sovereign authority. The attribute of sovereignty was never subsumed by the person of the prince, even when he was considered to rule by divine right. The distance between the two always allowed for the possibility that a prince who abdicated his responsibility—and of course, among the most serious infringements was the contamination of the public majesty with the prince’s personal interests—might lose the rightful authority to govern notwithstanding retaining actual control over his subjects. However, theological discourse in the late Middle Ages produced a parallel current of thought that effectively interiorised the notion of sovereignty with respect to the individual. Where the pastoral mode of power emphasised the relation of obedience between the individual and his Christian ruler, the metaphysical understanding of Christian being established a new relationship of obedience by which the individual, and the social and political institutions in which he functioned, were bound to a system of existential knowledge and truth. One aspect of this knowledge was the discourse on human free will, which, though latent in early Christian thought, was brought to the centre of theological learning by the scholastic schools and came to exert a distinct influence on the political and legal theory of the Renaissance. We know that in late antiquity individual life became the object of philosophical interest. It was an environment in which early Christianity discovered the fertile intellectual soil for both its dogma and its mission. The Christian encounter with Hellenic philosophy proved decisive in two opposing senses. In the first sense, early Christian writers found in Hellenic philosophy a vast store of concepts and terminology that could be imbued with a specifically Christian meaning: for example, the Logos could be used to explain the nature of the divine being, and Plato’s cosmology in the Timaeus proved to be a useful theoretical framework for the doctrine of creation. In the second sense, the entire tradition of Christian apologetics, beginning with Saint Paul, found it necessary to distinguish Christianity from pagan philosophy, the latter being consistent with polytheism, pantheism and all forms of gnosticism. Thus, Paul, who

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begins his first letter to the Corinthians with the distinction of true and false wisdom, proclaims the message on the cross as doing away with the wisdom so highly sought and praised by the Greeks: “Where is your wise man now, your man of learning, your subtle debater of this present age? God has made the wisdom of the world look foolish!”55 What we are concerned with is analysing the process of the construction of a specifically Christian form of subjectivity, as a means of understanding the extent to which the embryonic development of human ontology influenced the early modern political and legal ideas of individual liberty. We may suggest that this subjective form was expressed through a number of conceptual paradigms.

The metaphysical relation Early Christianity introduced into the monotheistic religion of the Jews a new mode of relating to God. Notwithstanding that the arrival of Jesus Christ was considered to have fulfilled the prophetic legacy commenced by Moses, his life and teachings marked a disruption in the historical conceptualisation of the divine being. Where the Judaic god utilised the Covenant and its law to establish the irreversible bond with the nation of Israel, the Christian god severed this exclusive bond and emphasised the infinite gap between the divine and terrestrial realms. As Marcel Gauchet has commented, Christ was not an ordinary Messiah who might have called for an uprising against the occupying power, who, in the name of the suppressed and chosen people, might have waged war against the conquerors in the name of carrying out God’s will. The resistance and flight he proposed were of a wholly different nature. For his god was so far removed from this world’s ties that it would not have made any sense to confront terrestrial thrones and principalities in his name. His battle was in the soul’s inner recess, far removed from Caesar demands, in the quiet conviction that the true kingdom lay elsewhere.56

In de-historicising the religious function of the Covenant and displacing the significance of Mosaic law with the truth of Jesus’ messianism, early Christianity effectively metaphysicised the relationship between humans and God. Rather than revealing Himself through physical manifestations—the symbols, text, law—the Christian god’s ultimate revelation was in the meta-physical form of the sending of his son, the transmission of divine grace through the filial man-god. It is then not surprising that early Christian writers—prefiguring the Trinitarian debates that would dominate high Medieval theology—were absorbed in the work

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of Christo-epistemology, the study on the knowledge of the nature of Christ through the events of the incarnation and the resurrection. In theological discourse, at least prior to the twelfth century Aristotelian renaissance, interest in the a priori nature of humankind served as the discursive centre of Christological doctrine. What it meant to be human in the wake of the resurrection of Christ penetrated the understanding of man’s terrestrial condition, specifically his need for salvation; it was pivotal to the construction of the logos in the sense of formalising the human nature of Christ as prototype; and, it fulfilled an eschatological function, providing a theory for the redemptive path of humanity.57 Viewed within this early form of Christology, John’s aphorism “So the Word became flesh” appears to have a profound, dual significance: it declares the end of the reign of discourse as religious sign, once again breaking with the Judaic textual tradition; and it pronounces that the Christian message is conveyed through the vehicle of the flesh, thus sacralising human life. As Paul makes clear, man, stripped of his ethnic robes and absent of rite or observance, is constituted of the fundamental division of the flesh and the spirit, or in symbolic terminology, of death and life. “It is of the essence of the Christian subject to be divided, through its fidelity to the Christ-event, into two paths that affect every subject in thought.”58 Just as the existence of Christ would be meaningless if it did not entail his own resurrection, the thought of the flesh alone resides in the fact of death. It is the subjective division that gives meaning to the eschatological primacy of Christian theology, for it creates the possibility of the individual fulfilling the purpose of Christ’s death and resurrection through his own allegiance to the thought of the spirit notwithstanding the limitations of the flesh: For if the dead are not raised, it follows that Christ was not raised; and if Christ was not raised, your faith has nothing to it and you are still in your old state of sin.59

What Paul evokes is the principle of human theosis—the sharing of God’s perfection through the process of perpetual resurrection—a principle that would become the foundation of Christian anthropology. Athenagoras in the second century explained the necessity of resurrection in terms of the subsistence of the body and soul as the vessel through which mind and reason had been gifted—“the man, a composite of body and soul, must always subsist, and this could not be if he does not rise again.”60

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The universal subject The Christ event, which made possible the redemption of mankind, also gave birth to a subject that was to be the bearer of a universal truth. Against the particularism of the Jewish religion and in spite of the ethnic identity of Greek wisdom, Paul conceived of the Christian faith as a process of non-recognition and non-difference, where the cultural subject risks oblivion in the face of an inevitable universality: “[f]or we have already drawn up the indictment that all, Jews and Greeks alike, are under the power of sin.”61 It is not merely a question of positing a universal deity, one who is accessible to all persons regardless of race, wealth or status, though of course the early Christian Church promoted this idea in its formative proselytising practice. The philosophical position that Paul initiates, and that is taken up by the Church Fathers, is fundamentally ontological. What it means to be human is tied to the teleological function of Christian grace. The shift in interest from the person of Christ to his actions on earth invested new significance in the concept of universalism, and irrevocably tied it to the destiny of humanity within the terrestrial economy. However, we should not understand the idea of human economy as an external, primordial order organising the path to salvation. At the root of the human economy is the rationally-driven free will which operates to determine human action from within. Freedom is exclusively conceptualised as a principle of self-determination: in other words, the autonomy and selfsubsistence of the human being in relation to its own redemption and salvation. Moral life is henceforth completely interiorized; set free from all exterior conditions, and even from interior conditions when these do not lie within our power, it is free in a far deeper sense than in Stoic doctrine, since the will is free not only of the world but of itself.62

The idea of the Christian being as a universal subject was reified by two significant strands of Medieval, theo-juridical thought. One was the development of a Christian conception of natural law supported by the emergent interest from the mid-twelfth century on in the knowledge of human conscience. Precipitated by the discussion of the nature of human will in Peter Lombard’s Sentences, later Medieval writers drew from the speculative philosophies of conscience and synderesis an ontological structure for their ethical and legal theories. The other was the equation of Christian teleology with right. This equation found its most profound expression in the doctrine of satisfaction appropriated from the ritual and

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private law of the Romans and applied to Christ’s salvific acts. From its introduction by the early Christian theologian Quintus Tertullian to its development through Anselm of Canterbury’s foray into in the theory of rightness and justice, the belief that human salvation depended upon the rendering of satisfaction, the payment of debt through Christ’s reparation of human sin, influenced much of dogmatic theology. Because only humanity owed the debt for its sins and only God could render satisfaction, human rightness was made possible by the incarnation and sacrifice. In Medieval Christian theology, human life is a testament to this dual act of justice.

Evil and reason The discourse on the personality of man was from its inception contingent on the ontological role assigned to the concept of evil. Anselm of Canterbury’s discussion in De Casu Diaboli of ontological categories, of the potentiality of being in human nature, and of the operation of the divine creative will in relation to the contingency of human existence, was aimed at systematically addressing the problem of the origin of evil, one that had plagued Christian doctrine since the fourth century when Augustine pronounced the axiom that evil is not a living thing but merely the privation of being. Similarly, if we are to understand the intensive analyses on the origin and operation of the human free will among the scholastic philosophers—Duns Scotus, Boethius and Thomas Aquinas— and their association of liberty with the causal efficacy of the individual will, we must look back to the ninth century theological controversies over the adopted Augustinian doctrine of predestination and divine grace. What concerned theologians such as Hincmar of Rheims and Florus of Lyons was to salvage the relation between the sovereignty of grace and an inherent human free will, a relation whose integrity was threatened by the accepted version of the predestination thesis. This problem ran at the heart of Christian belief. The investing of the individual with a liberating power to overcome the necessity of nature did not at all interest the Medievalists. In fact, for them the will was a natural power of choosing whose freedom was necessarily connected with the determination of good. Human fallibility, the propensity to head into error and evil, far from exemplifying that the root of freedom lay in the will (which in any case was not explicitly denied), attested that its cause lay in reason, which provided the power to choose amongst diverse conceptions of the good. This important distinction between the root and cause of freedom supplied the theoretical

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tools needed to marry the indeterminacy of the will with the determinacy of nature. The statement by Dionysius the Aeropagite that evil has no existence (Malum non est existens neque bonum) infected thinking beyond dogmatic theology. The problem of evil is a constitutive element of Christian epistemology, perhaps a legacy of its Judaic origin. But one might also consider the hypothesis that in the early and mid centuries of the first Christian millennium the pagan fascination with demons was neither eradicated nor conquered by the new, monotheistic religion of the Romans; instead, it was appropriated and internalised. Evil would no longer be the prerogative of denounced spiritual beings inhabiting all the natural cruelties which plague the human condition from the corners of ancient cosmology—tempests, infertility, diseases; instead, it presented itself as that thing most personal and fundamental to the human being. As early as the fourth century, the Byzantine theologian Basil of Caesarea confronted the Manichean reading of key biblical passages—for example, the second verse of Genesis begins, “Darkness was over the face of the abyss”—with the argument that evil is “not a living animated essence,” its own reality, but a negation of reality through a “falling away from the good.”63 It is true that the doctrine of the coeternity of Satan with God had incited the Patristic theologians to harmonise Christological beliefs with the Greek philosophical tradition. However, what was at stake was an anthropological vision, the very ability to perceive a world-view through the lens of the rational subject; in fact, the process of subjectification amounted to the rationalisation of divine knowledge. Tertullian’s aphorism on the primordial role of reason in Christian history not only signalled the definitive break with the fundaments of the Jewish religion, but became a working assumption of Medieval theology and philosophy: “God is not discursive from the beginning but is rational even before the beginning.”64 Whereas the doctrine of salvation performed a critical function in human ontology as understood through Christian theology, alone it was deficient in establishing the philosophical basis from which humanity could be released from the primordial necessity emanating from the creative potency of God. The equation of God with Being, in the sense that essence and existence are identical, makes possible beings and the contingency associated with their existence. The human condition then is subject to a double bind. On the one hand, all of God’s creations depend integrally on Him, in the sense that pure Being as necessity cannot alienate being—here, we clearly see why creation was conceived as a perpetual process, consonant with the infinite nature of God. In the exercise of its

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incomprehensible Divine will, it is self-obligated to embrace the creation as the fruit of its arborescent will. On the other hand, for the creation not to be in vain it must be endowed with that mark which allows it to be in perpetual suspension—continuous creation, resurrection—from the pure Being, namely, its own being, with its own causality and efficacy, and ultimately its own freedom of will. It is not in spite of its ontological dependence that the creature is really something, since if it is something it is so precisely in virtue of this very dependence. In eo vivimus, et movemur, et sumus [St Paul, Acts of the Apostles, XVII, 28]; that is to say it is only in God that we have life, movement and being, but, then, in Him we really have them.65

This double bind is at the heart of the relationship between human ontology, in particular, the concept of free will, and the doctrine of evil (evil as the denial or negation of being). The Medieval notion of human will, as free and undetermined—which is to say, not tied to any determined act—is wholly dependent upon the existence of non-being or non-good as a human possibility. The soul, where the will resides, is conceived as an actor itself, anterior to all physical acts that manifest its expression, while the moral rules and reason which support the soul are of the order of necessity, the permanent imprint of the human-divine economy of dependence. Thus, knowledge of the workings of the soul is not merely desirable, it is a necessary condition for exercising the ontological capacity of man and to avoid his fading into nothingness, the very corruption of being. The interiorisation of ethics—in the sense of a concern with the individual soul’s morality—in the Christian era was founded upon the knowledge and practices of the self in pagan thought. The Christian innovation was to make possible the transcendence of social and worldly existence in the aspiration for an existence that would most closely conform to the true essence of humanity, an essence revealed not to the social body as a whole but to the individual soul in its striving for this self-knowledge. The soul is essentially embodied by Christian doctrine with a history (of creation, imitation, sin, absence) and a teleology (redemption, perfection, good). The Christian mysteries do not refer to the question of what man is, nor of what he can be, but to the mystery of what might lie outside of Christian man, or rather of the order of being in which the rational subject is fundamentally rooted. Nietzsche has described the search for truth instigated by Socrates as dependent upon

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If Socrates had in fact initiated the philosophical equation of the search for truth with the knowing and transforming of the self, it was in Christian discourse that the knowledge and modification of the self came to define the very purpose of being. As a religion of canon, confession and salvation, Christianity assumed the functions of creating the rules for living in accordance with the faith, establishing the unmediated relation of the individual to his soul, and theorising a worldview that would account for man’s role in relation to Christian teleology. In this threefold sense, Christianity constructed man as a subject: no longer merely a spiritual subject in some way bound to the unknowable—a form promulgated in pagan religions—but a subject born of the striving to attain the truth of Christian being, a truth accessible to each person through self-knowledge and the practice of faith.

Liberty as a Humanistic Ideal It is reasonable to suggest that among the various uses of the notion of libertas in the late Middle Ages there was no firm, conceptual division between the legal and political forms of liberty. To exercise a liberty was to claim a natural right, which was supported by an emerging jurisprudence. At the same time, the discourse on rights developed around concrete political problems, the most significant of which was the relationship between the prince and his subjects. Thus, the legal and political manifestations of liberty in Medieval thought were inextricably linked, associated as they were with the figure of the juridical sovereign and the theory of natural right. However, during the fourteenth century there developed a discourse on political liberty that deviated from the paradigm of juridical sovereignty. In one sense it reflected the new concerns with civic government and the role of the individual as a citizen. In another sense it absorbed the concepts derived from the recent theological thinking on human ontology and metaphysics. The product was a subjective understanding of man as a juridical and political being; a form of subjectivity in which the individual is no longer merely bound by an external relation to a sovereign person, but in himself exercises a more fundamental form of sovereignty. In twelfth century Italy the proliferation of self-governing cities in Lombardy and Tuscany that coincided with the larger and more significant

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mercantile centres gave rise to a third political force to challenge those of Empire and Church. However, by the late thirteenth century, factionalism between the merchant and propertied classes brought an intensity of civil strife that forced many cities to abandon their republican aspirations and look to alternative forms of political rule. For contemporary legal and political writers, many of whom were directly embroiled in the disputes, these events prompted a revaluation of the theoretical foundations and functions of government, and a pragmatic interest in the relationship between political constitutions and the attainment of peace. The poet and philosopher Dante Alighieri was among the many intellectuals to have taken up political careers within the city republics. His opposition to the Guelph faction which supported the expansionist policy of Pope Boniface VIII lead him into exile from Florence, and it was in this context that he reflected on political constitutionalism through his treatise, De Monarchia. The text, which borrows heavily both from Scholastic theology and Aristotelean first principles, appears as an apology for imperial rule against the temporal claims of the papacy. In fact, while his pro-imperial stance reflected his personal opposition to the Black Guelphs and papal interference in the city’s politics and administration, the support of the Holy Roman Empire was equally inspired by the civic discord with which the Florentine republic was burdened and the corresponding desire for a unifying force to assume political control and establish peace across the Regnum Italicum.67 What is more remarkable about the tract, as Kantorowicz has brought to our attention, is the thesis that the body corporate of humankind is ruled by a “Universal Intellect,” by which all the potentialities of each individual or particularised community might be actualised as a collectivity, a universitas. 68 There is little doubt that in presenting the idea that it is only through humanitas and its universal intellect that man would be able to actualise his potentiality, Dante was borrowing from and further developing a number of discursive traditions. First, though he took the theory into a new direction, the idea that being is always in a state of motion and moves towards its actualisation is a fundamental principle of Aristotle’s metaphysics that was carried into late Medieval philosophy and incorporated into Christian theology notably by Thomas Aquinas. For Dante, the conceptual key to denying the temporal jurisdiction of the ecclesiastical office was to postulate human nature as a separate sphere of being with its own potentiality, one therefore that could not be guided towards actuation by the Church. Second, universitas was a legal concept and part of the language of Medieval corporate theory promoted by contemporary jurists such as Bartolus of Saxoferrato. It expressed the

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principle that a corporate body was a single entity in law, in effect, a legal person. It was in this way that the actualising capacity of man could be generalised in terms of the moral-political virtues that inhered in the human intellect, the latter being distinguished and formally separated from the other universal category, the Christian faith. Third, through the use of the term humanitas Dante exposed the idea of the “self-sufficiency and sovereignty of the universitas generis humani,”69 building upon the ontological conception of human nature and its dependence upon the concept of free will. Thus, he argued, the “human race is in its ideal state when it is completely free,” the first principle of freedom being the free will.70 Another effect of the experiences of the Italian city-states during the thirteenth and fourteenth centuries was the revival of republican thinking, which, even as the republican constitutions began to be replaced by the oligarchical rule of signori and their wealthy magnate families, maintained a firm presence in political theory up to and beyond the writings of Machiavelli. Late Medieval republicanism was organised around the concept of libertas, though to some degree it moved away from the theological understanding in which liberty was associated with natural right. Rather, it borrowed more directly from the juridical discourse on sovereignty and public law, establishing continuity with the early revival of Roman law and its influence on imperial politics in northern Italy. This juridico-political idea of liberty was constituted of two, mutually reinforcing aspects. One, which we may refer to as the external sense of liberty, understood freedom in terms of the independence and relative autonomy of the city as a self-governing entity. The other, the internal sense of liberty, advocated for a particular form of internal governance— the government of free persons—as a means of ensuring external liberty. The external sense of liberty pervaded all discussions of the politics of city-states from their inception, and from the mid-twelfth century it became a defining part of their mission to the extent that they were engaged in successive struggles against various German emperors who sought to integrate these important cities within the Regnum Italicum. Both Bartolus and his pupil Baldus de Ubaldus, the leading Roman law jurists of the fourteenth century, found it necessary to temper the prevailing Roman law theory on imperial sovereignty as a means of reflecting the fact that certain Tuscan and Lombard cities, notably Florence and Milan, effectively ruled without interference or recognition of any political superiors in their temporal affairs. The jurists invoked two modifications to the existing theory of sovereignty. In the first place, the fact that certain cities had established their own constitutional statutes and

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had legislated their own laws meant that they possessed de facto sovereignty, exercising a type and extent of power over their populace equivalent to that of the emperor. The canonists had already propounded the doctrine of Rex in regno suo est Imperator (a king is emperor in his own kingdom) in their anti-imperial vindication of papal sovereignty. For the commentators the same logic could be applied to the case of cities which had successfully established autonomous self-government.71 In the second place, the theory of imperial sovereignty had always been underwritten by the doctrine of lex regia, and as we have noted above, a prevalent interpretation of the lex regia advocated that the Roman people’s grant of sovereignty to the emperor was one of limited office, subject to the power of revocation. Both Bartolus and his near contemporary, the scholar Marsiglius of Padua, exploited this interpretation and argued— going further than had their predecessors—that sovereignty could not be alienated but instead remained at all times with the people, the citizen body as a whole. The citizens “constitute their own princeps” such that any “right of judgment” held by their rulers and magistrates “is only delegated to them (concessum est) by the sovereign body of the people.”72 For these same writers, the moving principle behind the city’s claim to autonomy was its own form of government. What we have referred to as the internal sense of liberty advocated a constitution of free persons by which all citizens would have the opportunity for participation in the business of government. The humanists of the quattrocento, who for good reason took a special interest in politics, promoted the principle that only with a republican form of government could a city and its citizens achieve and maintain liberty. The innovation in this argument was similarly twofold. First, the attribute of freedom was one that could be applied just as readily to the entire body of citizens as to each individual. This was a consequence of seeing the people as constituting a sovereign entity through citizenship. Second, the two were made interdependent: without the free involvement of citizens in the running of the city, the city would not pursue the common good and thus would never be a free state; by the same token, while remaining under the authority of the imperial sovereign, any attempt to establish a republican constitution ultimately would be futile and illusory. Once again, Medieval legal theory was a significant influence, notably through the idea of public law. Republicanism was not only a principle of political participation, but also a method of constitutional arrangement. The idea of the citizen body retaining sovereignty entailed that rulers and magistrates who exercised executive and judicial powers would be governed by law, as agents of justice and in the cause of administering for the common good. In fact, given that the

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political scene in fourteenth and fifteenth century Italy was dominated by the widespread demise of republican regimes and the emergence of the rule of signori and princes, it was inevitable that the literature on republican virtues would take the monarchical political system as a point of comparison. Where monarchical government was founded upon the servitude of subjects and rule by the will of the prince, republican government was founded on free relations and the subjection of governors and citizens alike to the law. Republican political theory can be said to have married the juridical doctrine of public right with the emerging discourse on political libertas. That is to say, the theoretical construction of a public space defined by the utilitas publica and the common good merged with the republican investment of sovereignty in the citizen body. Sovereignty was thereby redefined in a number of ways. Political authority, whose concern was the regulation of public affairs, inherited a certain degree of autonomy, at least with respect to the power exercised by individual rulers and officials. Political power therefore was tied to the machinery of civil government— the laws and public institutions—which functioned in more predictable and regular ways. It was precisely at this juncture that the concept of the state was formed. The quattrocento humanist accounts of the well-ordered political life were largely organised around the classical Roman thesis of the optimus status reipublicae.73 As one humanist maintained, the best status can be attained only if our magistrates “set aside the pursuit of their own advantages and ensure that they act in everything in such a way as to promote the public benefit”.74 The idea of the state emerged from the republican thesis regarding the maintenance of political life in accordance with the common good, and was generalised in application by humanist political thought in terms of the stato del principe or the state of the realm. Related to this development was the reconceptualisation of sovereignty through the framework of individual and collective liberty. Renaissance and early humanist political theory established political right as a rule for the government of free persons. Even Machiavelli, who challenged the traditional nature of the virtues necessary for the maintenance of political well-being, affirmed the axiomatic place of the concept of liberty in any political order. He begins his Discourses on Livy with an analysis of libertas that postulates three interconnected principles: that the goal of political society is the protection of individual liberty; that only within a free community, in which the common good is pursued over individual interest, can one hope to live freely; and that the preservation of individual liberty requires a system of self-government. Machiavelli was able to associate individual and collective liberty by virtue of his definition of

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liberty—as the absence of constraint from others allowing the pursuit of one’s chosen goals—as conceived through the prism of the theologicallybased theory of the human free will that had penetrated humanist thinking. Thus, a free city, just as a natural body, is one that is not under another’s control and can “govern itself from the outset according to its own will, whether as a republic or a principality.”75 The logical connection of liberty of the individual and liberty of the people remained a fundamental premise of political theory for the next three centuries. Jean-Jacques Rousseau, who was influenced by Machiavelli’s Discourses, derived his concept of the general will from the identification of individual civic liberty with the liberty of the community. In Rousseau’s case, however, civic liberty is more than the mere political aspiration of the citizen. Civic liberty is a mirror reflection of natural liberty, and thus of the essence of human nature. The individual, by the fact of possessing natural freedom, has sovereignty over himself. This inherent sovereignty is indivisible and cannot be alienated: “[t]o renounce liberty is to renounce being a man, to surrender the rights of humanity and even its duties.”76 However, natural liberty, whose power rests entirely with the individual, cannot function in an unlimited way given the existence of other social agents and the ensuing disorder created by the battle of personal interests and the reign of inequality. The individual’s submission to the general will, which is the means of his exercising civic liberty and avoiding servitude, reproduces at the collective, political level the logic that impels the naturally-free individual who necessarily submits to the laws of nature. For Rousseau, the sovereignty of the general will ensures the liberty of the individual. Where the Medievalists established as a principle of public right that private interests be sacrificed to the utilitas publica, the interests of Rousseau’s citizen are identical to the public interest.77 What is required in order to preserve the common good, and thus the liberty of the individual, is that the sovereign body—represented by the general will—establishes its own laws by which the acts of its members will be governed and the interests of the community as a whole protected. To be sure, not all of the liberal philosophers shared Rousseau’s interest in repairing the divide between the individual as man and the individual as citizen. Benjamin Constant, like many others writing in the shadows of the French Revolution, made a point of comparing the liberty of the ancients with that of the moderns in order to avoid the anachronism of subscribing to ancient ideals. While the ancients enjoyed an active public existence, he argued, their political sense of liberty came at the sacrifice of individual liberty, whereas the moderns, who find satisfaction

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in their private lives, enjoy a liberty through the security of personal choice and representation.78 Nonetheless, even Constant accepted the premise of the incontestable character of popular sovereignty, and in his critique of the dogma of absolute sovereignty, which history had shown to be destructive rather than protective of liberties, he retreated even further into the idea of the individual being as the essential site of sovereign power.

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CONCLUDING REMARKS

“A doctrine which transgresses against humanity could not eternally possess humanity.” —Pierre Joseph Proudhon

The modern idea of subjective rights rests upon a number of assumptions whose emergence we have attempted to explain from a historical perspective: that rights pertain to the individual as a juridicopolitical subject; that the individual possesses a free will—a sphere of internal autonomy that is inviolable; and, that the function of law is to give effect to the inherent freedom of human being. At the heart of the problem of the subject of rights is the question of how to give effect to the ideal of liberty or human freedom. We have seen that the way that Greek political philosophy dealt with this question is far removed from the various approaches adopted in Medieval discourses. Having analysed some of the prominent intellectual movements, institutions and practices in the Middle Ages, we have suggested how particular developments in law and political structures had consequences for the construction of the individual as a juridico-political subject. As is clear from the selective and eclectic tenor of the analysis, the historical process of this construction was far from homogenous, uniform and predictable. In order to explain this process in as much detail as possible we have had to sacrifice any expectation of presenting a progressive history of ideas, or of being thorough with respect to the relevant historiography. Inevitably, we have presented only one possible history of subjective rights, though the broad framework of the analysis does suggest other possible directions. In bringing this inquiry to a close, let us make some general observations about the relevance of a history of subjectivity within rights to the modern discourse of human rights. As Foucault has demonstrated in his genealogical investigations, “humanity does not start out from freedom but from limitation.”1 If freedom is taken to be a construct brought about in reaction to the systems of rules that Western culture imposes in the form of limitation, the importance of analysing the birth of subjective right—a primary means of giving effect to the construct of human freedom—is manifest. This is all the more necessary given that the most influential

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modern philosophies of right are premised on theories of subjectivity that revolve around the problem of individual freedom. As we have seen, Rousseau’s political theory was based on the attempt to unite popular sovereignty and the individual will in a mutual relationship to ground the best political order for the attainment of human freedom. In so doing, he was partly reacting against the Hobbesian approach of reducing sovereignty to the transference of power from the natural to the artificial person. For Hobbes, right corresponds to man’s divestiture of his natural liberty through the process of establishing an artificial person with the capacity for authoritative or representative action. However, because this divesting act is undertaken at the communal rather than individual level (for otherwise there would be no point in the individual giving up his natural right), the process of creating the Leviathan implies the existence of two sovereign forms or modalities: in establishing a compact by which right is to be transferred the people are given “a single will and voice, thereby converting them into one person, the person of the state”;2 at the same time, that person, as the manifestation of sovereignty, becomes a representative of the multitude of individuals who nonetheless retain authorship of the acts of the sovereign. By contrast, Rousseau avoided having his theory of sovereignty hinge upon the transference of natural right from the natural individual to an artificial person; instead, he took the general will to constitute the political manifestation—namely, civic liberty—of the individual’s autonomous will. This project was later taken up by Kant in his metaphysical philosophy of right. For Kant the primordial and innate right to freedom is “grounded in the autonomous will of individuals who, as moral persons, have at their prior disposal the social perspective of a practical reason that tests laws.”3 Human morality, through practical reason, makes possible the transformation of this single primordial right into a system of rights by which the freedom of the individual and the right to equal liberties may be protected at the institutional, juridical level. Because right is the fundamental expression of an internal, moral world, the need to protect the autonomy of the individual will follows as an unquestionable assumption. There is thus a metaphysical relation between the moral dictate for recognising innate freedom and equality and the external structures of legitimacy that instrumentally carry out this dictate. We thus find, in the autonomy of the will, an a priori synthesis which gives the concept of freedom an objective, determined reality by linking it necessarily to that of practical reason.4

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On the matter of political constitutions, Kant, unlike Rousseau, does not accord the same privilege to popular sovereignty simply because political constitutionality is always necessarily subservient to the morally—thus naturally—grounded human right. Kant did not interpret the binding of popular sovereignty by human rights as a constraint, because he assumed that no one exercising her autonomy as a citizen could agree to laws infringing on her private autonomy as warranted by natural law.5

For Kant, the social contract is an instrument of legitimation: it establishes a civil constitution under which all individuals have their freedom protected through the mediation of the public rule of law. The relationship between the human will, existing a priori, and the construction of political autonomy is the foundation upon which natural right informs positive law. The difference between the private (right to freedom) and public (political autonomy) spheres is therefore integral to the doctrine of right; neither can do without the other, but nor can the distance between them be eliminated. As long as moral law demands the recognition and protection of the individual free will in accordance with a universal legislation, public right has a function in providing the limitation for human freedom. Both morality and right are locked into this relation of necessity determined by practical reason. However, from a genealogical perspective there are some fundamental questions that arise with Kant’s metaphysical conception of right. One question relates to the correspondence of the free will of moral persons with the autonomy of citizens under the rule of law. If one asks, what gives legitimacy to certain positive laws, the answer would refer to the democratic process that reproduces the exercise of the sovereign will of the people. If in turn one asks what grounds the sovereign will of the people, the answer would refer back to the moral autonomy of the individual. Yet, outside of an historical explanation, there is no necessary connection between individual morality and collective will formation. In other words, granted that the human being is a moral subject, it would seem to be by mere contingency that he becomes a political and legal subject. The Kantian presupposition for the link between moral subjectivity and legal-political subjectivity is the idea of the individual as a self-determining being who utilises practical reason to achieve his moral ends. Absent the innate and natural predilection for freedom, however, self-determination remains an empty characteristic. Thus, to make sense of this logic one must attempt an answer to the question, if it is accepted that

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the legal-political subject is constituted after the model of the morallydriven subject, in what sense is the individual inherently free? The other problematic is related to the above question. It is patent that Kant’s conception of right is fundamentally rooted in a universalist ethics. Not only is the innate right to freedom something shared universally in human nature, but the means by which morality and reason achieve a synthesis in right is an imperative that is in itself universal: “the quest for the universal is indissolubly linked to human freedom, of which it is the sign.”6 The concept of the universal is never in fact defined; it is merely inscribed in a formal process by which the universal logically leads to the particular, thus morality to law. However, an ethics that places ultimate value in universalism is but one particular philosophical position, and as such it requires some justification or explanation where it is to serve as the foundation for a political theory. As we have demonstrated in our analysis of Greek political thought, it is possible to conceive of political structures and discursive methods for giving effect to the invention of freedom without relying upon either universal morality or the inherent rights of individuals.

NOTES

Introduction 1. Manent, Intellectual History, xvi. 2. Kant, The Metaphysics of Morals, 30. 3. Arendt, Kant’s Political Philosophy, “Thirteenth Session”, 72-77. 4. Marx and Engels, The German Ideology, 99. 5. Marx, “On the Jewish Question,” 229-231. 6. Arendt, The Origins of Totalitarianism, 291. 7. Heidegger, “World Picture,” 133, 153. 8. Ibid. 9. Arendt, The Origins of Totalitarianism, 299. 10. “Charter of the International Military Tribunal,” 82 UNTS 279; 59 Stat. 1544; 3 Bevans 1238; 39 AJILs 258 (1945), Article 6(c). The principles in this instrument were affirmed by resolution of the UN General Assembly in 1946: “Affirmation of the Principles of International Law Recognised by the Charter of the Nuremberg Tribunal,” G.A. Res. 95 (I), U.N. GAOR, 1st Sess., pt. 2, at 1144, U.N. Doc. A/236 (1946). 11. The Prosecutor v Drazen Erdemovic, Case No. IT-96-22-T, Sentencing Judgement, 29 November 1996, para. 28. 12. UN Doc. A/CONF. 183/9; 37 ILM 1002 (1998); 2187 UNTS 90, Article 7. 13. See Ranciere, Disagreement, 129-130. 14. See Foucault, History of Sexuality, 1990. 15. Skinner, Liberty Before Liberalism, “Free States and Individual Liberty.” 16. Locke, Two Treatises of Government, 1988. 17. Manent, Intellectual History, 50. 18. See generally Tocqueville, Democracy in America, 1966. 19. See discussion of the sovereignty and independence of states in Gilson, Sovereign Equality, 53-58.

Freedom, Democracy and Friendship in Greek Political Thought 1. Aristotle Eudemian Ethics 7.10; see also Nicomachean Ethics 8.10-12. 2 Vegetti, “The Greeks and their Gods,” 269; Murray, “Forms of Sociality,” 235. 3. Calasso, Cadmus and Harmony, 94-95. 4. Plato Cratylus 401c-d. 5. See Plato Republic 4.

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6. Gadamer, Dialogue and Dialectic, 87. 7. Foucault, Use of Pleasure, 78-81. 8. Ibid., 80. 9. Thucydides Peloponnesian War 2.37-41. 10. Aristotle Politics 3.8. 11. Thucydides Peloponnesian War 6.39. 12. Plato Republic 8.558b. 13. Rancière, Disagreement, 40. 14. Plato Laws 2.653c. 15. Rancière, Disagreement, 67. 16. Aristotle Politics 2.2. 17. See Aristotle Constitution of Athens 6-12. 18. Rancière, Disagreement, 72. 19. Aristotle Constitution of Athens 21; Ober, Mass and Elite, 70-71. 20. Thucydides Peloponnesian War 8.67.

Divine Right and Ecclesiology 1. Cicero The Republic 3.33. 2. Cicero On Ends 3.62-8. 3. Bataille, The Accursed Share, 197. 4. MacMullen, Paganism, 82. 5. Brown, “Late Antiquity,” 254. 6. Ibid., 257. 7. Rom. 13.1. 8. Veyne, “The Roman Empire,” 218. 9. MacMullen, Paganism, 85. 10. Brown, Authority and the Sacred, 19. 11. Fowden, Empire to Commonwealth, 88-89. 12. Pelikan, Catholic Tradition, 37. 13. Markus, “The Latin Fathers,” 112-113. 14. See generally Foucault, “Omnes et Singulatim;” Foucault, “Security, Territory, and Population,” 67-68; Foucault, “The Subject and Power,” 783. 15. Foucault, “Technologies of the Self,” 242. 16. See Pelikan, Christianity and Classical Culture, especially 173. 17. See Le Goff, The Medieval Imagination, “The Repudiation of Pleasure.” 18. Brown, Power and Persuasion, “Poverty and Power.” 19. Ibid., 113. 20. Gregory of Nazianzus Orations 38.13. 21. Le Goff, The Medieval Imagination, 50. 22. Markus, “The Latin Fathers,” 119. 23. Myers and Wolfram, Medieval Kingship, 2-4. 24. Eusebius Oration on the Tricennalia of Constantine, ii, 1-5, in Stevenson, ed., A New Eusebius, 392.

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25. King, “The Barbarian Kingdoms,” 142-143. 26. Wolfram, History of the Goths, 212. 27. Canon 15, Mansi, Sacrorum conciliorum nova et amplissima collectio (Venice, 1759-98) 2.1044, quoted in Lupoi, European Legal Order, 426 n.442. 28. Wallace-Hadrill, Early Germanic Kingship, 55-56. 29. Lupoi, European Legal Order, 248. 30. Ibid., 196-197. 31. Ganshof, Frankish Institutions Under Charlemagne, 46, 84-85. 32. Ibid., 23-26, 73-86. 33. See Barnwell, “Emperors, Jurists and Kings.” 34. Rouche, “Early Middle Ages,” 421. 35. Ibid., 424-5. 36. Ullman, Carolingian Renaissance, 39. 37. Delogu, “Lombard and Carolingian Italy,” 307-308. 38. Kantorowicz, The King’s Two Bodies, chap. 3. 39. Capitulare (790) 95 chap. 10, quoted in Ullmann, Growth of Papal Government, 47. 40. Lupoi, European Legal Order, 282. 41. Ibid., 275. 42. Bede Ecclesiastical History 2.5. 43. Aethelred X 1, in Robertson ed., Kings of England, 131. 44. Brown, Rise of Western Christendom, 281-281. 45. Aethelred V 10.1, Aethelred VI 13, in Robertson ed., Kings of England, 83, 97. 46. Cnut I, 2 .1, 2.2, in Robertson ed., Kings of England, 155. 47. Edmund II 2, in Robertson ed., Kings of England, 9; see also Aethelred VIII 15; Cnut I 2-3. 48. Edward & Gunthram 12, in Attenborough ed., Earliest English Kings, 109. 49. Cnut II 39, 42. 50. Chaney, Cult of Kingship, 187. 51. Ibid., 213-218. 52. Wihtred I, in Attenborough ed., Earliest English Kings, 25. 53. Ullmann, Carolingian Renaissance, 97. 54. Epicurus Key doctrines 33, in Long and Sedley eds, The Hellenistic Philosophers, 125. 55. Marcian 1 (Chrysippus On Law), in Long and Sedley eds, The Hellenistic Philosophers, 432. 56. Lupoi, European Legal Order, 428. 57. Cnut II 1.1. 58. Cnut Proclamation of 1027 10, in Robertson ed., Kings of England, 149. 59. William I Articuli Retractati 5, in Robertson ed., Kings of England, 247. 60. MGH Cap. 1.34, quoted in Nelson, “Kingship and Empire,” 222.

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Feudal Right 1. Habermas, Theory and Practice, 42, 47. 2. See Kriegel, Rule of Law, chap. 2; Mackrell, Attack on ‘Feudalism,’ “Introduction.” 3. See Furet, The French Revolution, chap. 1. 4. Duby, “Private Power, Public Power,” 14. 5. Rom. 6:20-23. 6. Ambrose Epistulae 7, 9, 23 respectively, quoted in Garnsey, Ideas of Slavery, 194, 200. 7. Augustine De civitate Dei 19.15, quoted in Garnsey, Ideas of Slavery, 217. 8. Lactantius De ira 17.11, quoted in Garnsey, Ideas of Slavery, 224. 9. Herlihy ed., The History of Feudalism, 75. 10. Duby, Age of the Cathedrals, 45. 11. Hugh of St Victor De sacramentis 2.2-4, quoted in Pullan, History of Medieval Europe, 77-80. 12. Duby, The Three Orders. 13. Savigny, History of the Roman Law, 174-5. 14. Bloch, Feudal Society, 258. 15. Kriegel, Rule of Law, 59. 16. Otto of Freising Gesta Friderici Imperatoris 2.13-15, quoted in Pullan, History of Medieval Europe, 176-8. 17. Bloch, Feudal Society, 295-6. 18. Haverkamp, Medieval Germany, 62-3. 19. Duby, Early Growth, chap. 6. 20. Bloch, Feudal Society, 171. 21. Le Roy Ladurie, Montaillou, 20-1. 22. Duby, Early Growth, 177. 23. Bloch, Feudal Society, 192-3. 24. The constitution of Emperor Conrad II concerning the fiefs of Italy, quoted in Herlihy ed., The History of Feudalism, 107-9. 25. Reynolds, Fiefs and Vassals, 52. 26. Reproduction in Duby, France in the Middle Ages, illustration 1. 27. Foucault, “Truth and Juridical Forms,” 35. 28. Raoul de Cambrai Chanson de geste 4.236.2-3, quoted in Herlihy ed., The History of Feudalism, 166-7. 29. Brown, “Society and the Supernatural,” 138. 30. Charter of immunity from Charles the Bald, No. 214 of September 11, 859, quoted in Herlihy ed., The History of Feudalism, 126-8. 31. Wormald, Legal Culture, 328-9. 32. Maitland, Domesday Book and Beyond, 277-8. 33. Leges Henrici Primi 8.3, quoted in Douglas and Greenaway eds, English Historical Documents, 493. 34. Bloch, Feudal Society, 366-7. 35. Pollock and Maitland, History of English Law, 585-7.

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36. Philippe de Beaumanoir Coutumes de Beauvaisis 58, quoted in Herlihy ed., The History of Feudalism, 193-6. 37. Pollock and Maitland, History of English Law, 589. 38. Edgar, Ordinance of the Hundred 2, quoted in Stubbs ed., Select Charters, 70. 39. Dobb, Development of Capitalism, 42-5. 40. See Bartlett, The Making of Europe, “The Aristocratic Diaspora.” 41. Dobb, Development of Capitalism, 64. 42. Calasso, Gli Ordinamenti Giuridici, 103-4. 43. Le Goff, Medieval Civilization, 290-1. 44. Calasso, Gli Ordinamenti Giuridici, 120-3. 45. Hilton, English and French Towns, “Urban Social Structures.” 46. See Gaius Institutiones 1.50-3, in Justinian, Corpus Juris Civilis, 88-9.

Juridical Sovereignty and Public Law 1. Foucault, The History of Sexuality, 136. 2. Discussed in Kantorowicz, King’s Two Bodies, 97-107. 3. See Duby, The Three Orders, 206-211. 4. Chodorow, Christian Political Theory, 27. 5. Cushing, Papacy and Law, 18-21. 6. Decrees of the Council of Rheims 1049, quoted in Tierney, Crisis of Church, 3132. 7. See Wolter, “L’ospedale in Occidente durante l’alto medioevo,” 260. 8. Ullmann, Growth of Papal Government, 376. 9. De vera et falsa penitentia 10, 15, 20, quoted in Ullmann, Growth of Papal Government, 377. 10. Libri III Adversus Simoniacos, quoted in Tierney, Crisis of Church, 40-42. 11. Cushing, Papacy and Law, 37. 12. Knox, “Finding the Law,” 422, 428, 454. 13. Gilchrist, “Gregory VII,” 4. 14. Cowdrey, tr., The Register of Pope Gregory VII 1073-1085. 15. Dictatus papae 1, 2, 4, 7, 16, 21, quoted in Tierney, Crisis of Church, 49-50. 16. Chodorow, Christian Political Theory, 151-152. 17. Ibid., 152-153. 18. See generally ibid., chap. 7. 19. Onory, Fonti Canonistiche, 99. 20. Ibid., 122. 21. Bernard of Clairvaux De Consideratione 4.23 (Five Books on Consideration, 138). 22. Pennington, “Innocent III,” 28-30. 23. Ulpian Inst. 1.2.6, Dig. 1.4.1, in Justinian, Justinian’s Institutes. 24. Ulpian, Dig. 1.3.31. 25. Frederick II Liber Augustalis Prooemium, 4. 26. Kantorowicz, King’s Two Bodies, 143.

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27. “[the prince is] obedient to law, and rules his people by a will that places itself at their service, and administers rewards and burdens within the republic under the guidance of law…[he is therefore] the minister of the public utility and the servant of equity, and in him the public persona is borne.” John Of Salisbury, Policraticus, 28, 30-31. 28. See discussion in Anderson, Antiquity to Feudalism, 136. 29. Lupoi, European Legal Order, 42-43. 30. Van Caenegem, “Government, Law and Society,” 182-183. 31. Ladner, “Two Gregorian Letters,” 236-242. 32. See Pennington, “Law, Legislative Authority,” 424-425. 33. Lupoi, European Legal Order, 408-409. 34. Leff, Medieval Thought, 93. 35. Bellomo, Common Legal Past, 68. 36. Stock, Implications of Literacy, 55. 37. Bellomo, Common Legal Past, 164. 38. Ibid., 160. 39. Gratian Decretum D.7 (Treatise on Laws, 22-23). 40. Gratian Decretum D.9.C.5, C.6 (ibid., 30-31). 41. Gratian Decretum D.11.C.1, D.4.C.2 (ibid., 37, 3 respectively). 42. See, for example, the Record of the judgment by William I in a plea between the abbey of Fécamp and William of Briuoze, in Douglas and Greenaway eds, English Historical Documents II, 485-6. 43. Lupoi, European Legal Order, 311. 44. Milsom, Legal Framework, 36. 45. Lupoi, European Legal Order, “Excursus V: The Anglo-Saxon writ.” 46. Green, A Crisis of Truth, 127. 47. Ibid., 130. 48. Clanchy, England and its Rulers, 156. 49. Liber Augustalis, Prooemium, p. 5. 50. “It is fitting that all persons subject to the scepter of our rule should be governed by the grace of our majesty. We favor the glory of peace by defending one from another, both men and women, from elders, from minors, and from equals and by not allowing force to be used at all.” Frederick II Liber Augustalis XXI, 24. 51. “We order that respect for peace, which cannot exist apart from justice and apart from which justice cannot exist, should be observed in each and every part of our kingdom. No one should avenge himself in the future on his own authority for excesses which have been committed or which should be committed…But he should pursue his case according to judicial procedure before the master justiciar and the regional justiciars, or the local chamberlains, bailiffs, and lords just as the cognizance of the case pertains to each of them.” Ibid., VIII, 14. 52. Galbraith, Making of Domesday Book, 183-184. 53. Roffe, Domesday, 49. 54. Ibid., 51. 55. Hollister and Baldwin, “Rise of Administrative Kingship,” 868.

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56. Clanchy, Memory to Written Record, 66. 57. Stubbs ed., Select Charters, 147. 58. Ibid., 148. 59. “Likewise inquiry is to be made concerning the archbishops, bishops, abbots, earls, barons, vavasours, knights, citizens, burgesses and their stewards and ministers as to what and how much they have received throughout their lands from every one of their hundreds, every one of their villages and every one of their men—whether by judicial process or without judgement—and they are to write down individually all these exactions and their causes and occasions.” Inquest of Sheriffs 1170 clause 3, in Stubbs ed., Select Charters, 176. 60. Foucault, “Truth and Juridical Forms,” 46. 61. Ibid., 41-43. 62. Onory, Studi sulle Origini Storiche, 19-20. 63. Stubbs ed., Select Charters, 80. 64. Ibid., 94. 65. Charter of Liberties Issued by Henry I, in ibid., 99. 66. Holt, Magna Carta, 25, 27. 67. Onory, Studi sulle Origini Storiche, 26. 68. Ibid., 47. 69. Ibid., 120-126. 70. Ibid., 31. 71. De Vergottini, “Note sulla Formazione,” 216. 72. Ibid. 73. De Vergottini, “Origini e Sviluppo Storico,” 31. 74. Ibid., 21, 32, 33. 75. De Vergottini, “Note sulla Formazione,”219-220. 76. Ibid., 223-224. 77. Harding, Medieval Law, 219. 78. Ibid. 79. Ibid. 80. Onory, Studi sulle Origini Storiche, 61-74. 81. “Now morally practical reason pronounces in us its irresistible veto: there is to be no war, neither war between you and me in the state of nature nor war between us as states, which, although they are internally in a lawful condition, are still externally (in relation to one another) in a lawless condition; for war is not the way in which everyone should seek his rights…we must work toward establishing perpetual peace and the kind of constitution that seems to us most conducive to it (say, a republicanism of all states, together and separately) in order to bring about perpetual peace and to put an end to the heinous waging of war, to which as their chief aim all states without exception have hitherto directed their internal arrangements.” Kant, The Metaphysics of Morals, 123. 82. Foucault, Society Must Be Defended, generally pp. 49-60. 83. Inst. 1.2.6, Dig. 1.4.1. 84. Otto Gierke, Political Theories, 43; Kantorowicz, King’s Two Bodies, 103. 85. Frederick II Liber Augustalis XXXI, 32.

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Notes

86. “His power is that of jus, not injuria and since it is he from whom jus proceeds, from the source whence jus takes its origin…what one is bound by virtue of his office to forbid to others, he ought not to do himself. As vicar and minister of God on earth, for that power alone is from God.” Bracton De legibus et consuetudinibus Angliae fol. 107 (On the Laws, 305). 87. Ibid. 88. Cod. 1.14.4. 89. Tierney, “Prince is Not Bound,” 390-391. 90. See discussion in Kantorowicz, King’s Two Bodies, 95-96. 91. Gloss ad Cod. 1.14.4, quoted in Tierney, “Prince is Not Bound,” 393. 92. Lectura insignis super prima parte codice, quoted in Riesenberg, Inalienability of Sovereignty, 32. 93. Calasso, “Origini italiane della formola,” 221. 94. Post, Medieval Legal Thought, 424-425. 95. Riesenberg, Inalienability of Sovereignty, 9. 96. Baldus Consilia 3.159.3, 5, quoted in Kantorowicz, King’s Two Bodies, 299. 97. Kantorowicz, King’s Two Bodies, 336-342. 98. Pennington, The Prince and the Law, 105-106. 99. Riesenberg, Inalienability of Sovereignty, 18. 100. Ibid., 109. 101. Hoeflich, “Concept of Utilitas Populi,” 38-39. 102. Ibid., 42. 103. Mochi, Fonti Canonistiche, 100-102. 104. Ulpian, Dig. 1.1.2. 105. Post, Medieval Legal Thought, 254. 106. Wilks, Problem of Sovereignty, 184. 107. Ibid., 206. 108. Onory, Fonti Canonistiche, 128-132. 109. See Post, Medieval Legal Thought, 275-276, 287. 110. Ibid., 288-289. 111. Ibid., chap. 4, “A Romano-Canonical Maxim, Quod Omnes Tangit, in Bracton and in Early Parliaments.” 112. Ibid., 233. 113. Ibid., 277-278. 114. Ibid., 417. 115. William of Ockham An princeps OP 1:5, 244, quoted in Tierney, Idea of Natural Rights, 190. 116. Epstein, “Rise and Fall,” 284. 117. Ibid., 284. 118. Sbriccoli, “Legislation, Justice,” 45. 119. Ibid., 45-46. 120. Riesenberg, Inalienability of Sovereignty, 77. 121. Calasso, “‘Ius Publicum’,” 65.

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Natural Right and Liberty 1. Inst. 1, 1, 2; also Dig. 1, 1, 3. 2. Koziol, “Lord’s Law,” 109. 3. Wallace-Hadrill, The Frankish Church, 240. 4. Kantorowicz, King’s Two Bodies, 142. 5. Isidore of Seville Etymologies 5.2, quoted in Gratian Decretum D.1. (Treatise on Laws, 3). 6. Post, Medieval Legal Thought, 539-541. 7. Gratian Decretum D.1.1. 8. Post, Medieval Legal Thought, 522. 9. Gloss on “human race” of Decretum D.1.1. 10. Cicero De Republica 3.22. 11. Gratian Decretum D.1.1, C.1. 12. Gratian Decretum D.8.2. 13. Augustine Confessions 3.8. 14. Ibid. 15. Cortese, La Norma Giuridica, 60-61. 16. Reference to Azo, Summa Inst., quoted in Post, Medieval Legal Thought, 543. 17. Ptolomaeus of Lucca De regimine principum 3.C.2, quoted in Gierke, Political Theories, 191-192 n.323. 18. Kriegel, “Rule of the State,” 17. 19. Bodin, Six Books, bk. 2, chap. 2. 20. Ibid., bk. 1, chap. 8. 21. Ibid., bk. 2, chap. 2. 22. Ibid., bk. 1, chap. 8. 23. Dig. 1.1.4. 24. Inst. 1.1.2. 25. Inst. 2.2.1. 26. Post, Medieval Legal Thought, 545. 27. Gratian Decretum D.8.1. 28. Tierney, Idea of Natural Rights, 137-138. 29. Ibid., 143. 30. Ibid. 31. Nicholas III Exiit qui seminat CIC.II.1112, quoted in Natalis, Poverty of Christ, 4. 32. Natalis, Poverty of Christ, Q. 2A, art. 1.5 (40). 33. Greene, “Instinct of Nature,” 178-179. 34. William of Ockham Opus nonaginta dierum 305-308, 432, quoted in Tierney, Idea of Natural Rights, 160. 35. “Dominion seems rather to signify power itself…ownership signifies the thing to which someone has a right, where the thing does not belong to someone else.” Natalis, Poverty of Christ, Q. 2A, art. 1.5. 36. Tierney, Idea of Natural Rights, 160. 37. Ibid., 172.

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Notes

38. See references to Bartolomè de Las Casas De regia potestate, quoted in ibid., 278-279. 39. Ibid., 284. 40. William of Ockham On princes 1.2.232, quoted in ibid., 187. 41. See John Wycliffe De Civili Dominio, quoted and commented upon in Carlyle and Carlyle, Mediaeval Political Theory, 56-58. 42. Somnium Viridarii 1.141, quoted in ibid., 38. 43. Odofredus de Denariis Lectura super Codice to Cod. 1.22(25).6, quoted in Pennington, Prince and the Law, 151. 44. Accursius Ordinary Gloss to Cod. 7.37.3, quoted in Pennington, Prince and the Law, 22. 45. Gerson De vita spirituali animae, quoted in Tierney, Idea of Natural Rights, 53. 46. Tierney, Idea of Natural Rights, 84-85. 47. Ibid., 86. 48. Bartolomè de La Casas De regia potestate 12.1.1.1, 34, quoted in ibid., 278. 49. Tierney, Idea of Natural Rights, 313-314. 50. See van Rhee, “Procedural Ius Commune,” 219-220. 51. Baldwin, “Intellectual Preparations,” 617. 52. Cited in Pennington, Prince and the Law, 143. 53. See Pennington, “Due Process.” 54. Ibid., 15-16. 55. Cor. 1:1-17. 56. Gauchet, Disenchantment of the World, 118. 57. See Pelikan, Catholic Tradition, chap. 6. 58. Badiou, Saint Paul, 56. 59. Cor. I:15.16. 60. Athenagoras De resurrectione mortuorum cap. 15, quoted in Gilson, Spirit of Mediaeval Philosophy, 192-193. 61. Rom. 3:9. 62. Gilson, Spirit of Mediaeval Philosophy, 359. 63. Basil of Caesarea In Hexaemeron 2.4-5, quoted in Pelikan, Christianity and Classical Culture, 80. 64. Tertullian of Carthage Against Praxeas 6.3, quoted in Pelikan, Catholic Tradition, 188. 65. Gilson, Spirit of Mediaeval Philosophy, 131. 66. Nietzsche, The Birth of Trajedy, 95. 67. Skinner, Modern Political Thought, 18. 68. See Kantorowicz, King’s Two Bodies, chap. 8. 69. Ibid., 463. 70. Dante Monarchy 1.12. 71. See, generally, Skinner, Modern Political Thought, chap. 1. 72. Bartolus of Saxoferrato Commentaries on the Second Part of the New Digest, quoted in ibid., 62. 73. Skinner, Visions of Politics, 372

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74. Filippo Beroaldo De Optimo Statu, quoted in ibid. 75. Machiavelli Discourses on Livy 1.2, quoted in ibid., 199. 76. Rousseau, The Social Contract, 186. 77. See Viroli, “The concept of ordre,” 170. 78. See Constant, The Spirit of Conquest, 102-104.

Concluding Remarks 1. Foucault, “Madness,” 100. 2. Skinner, “Hobbes,” 26. 3. Habermas, Between Facts and Norms, 93. 4. Deleuze, Kant’s Critical Philosophy, 29. 5. Habermas, Between Facts and Norms, 101. 6. Ferry and Renaut, Rights of Man, 68.

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INDEX

Aristotle 13, 15-17, 20, 23-4, 65, 173 Augustine 31, 35, 37-9, 46, 72-4, 104, 114, 146, 151, 169 Canon law (also canon lawyers, canonists) 49, 56, 97, 104-8, 112-3, 120, 135, 147-8, 151-64, 175 Charlemagne (also Carolingian) 4657, 61-4, 70-7, 81, 83, 88, 110, 119, 121, 144 Charter 60, 88, 109, 115, 120-8 Citizen (also citizenship, citizenry) 4-5, 9-10, 16-20, 24-5, 31, 34, 37, 65, 119, 123-5, 128, 138-40, 158, 172, 175-7, 181 City-state 15, 66, 133-4, 174 Civil Law (also civil lawyers, ius civile) 1, 135-7, 148, 151-3, 158-9, 163-4 Decretum 106-7, 112, 138, 145-7, 151, 157, 159 Democracy (also demos) 8, 10, 1526 Dominium 73, 97, 149-61 Enlightenment 3, 149 Equity (also aequitatis, aequitas) 46-7, 62-3, 66, 109, 113, 116, 131, 148 Evil 147, 169-71 Feudal right (also feudal law) 69, 76, 79-80, 92-8, 127, 138 Fidelity (also fidelitas) 63-6, 70-1, 89, 95, 97, 124 Foucault, Michel 6, 15, 35, 129, 179 Frederick II 101, 103, 109, 117, 123, 130

Free will 160, 165, 168-9, 171, 174, 177, 179, 181 Gratian 104-7, 112, 114, 145-7, 151 Hobbes, Thomas 7, 10, 65-7, 98, 180 Humanism (also humanistic) 1, 3, 12, 14, 143, 145 Imperium 34, 130-1, 135, 149, 1579 Inquiry (also inquisitio) 118-20, 162 Isidore, of Seville 45-7, 62, 74, 144-8, 159 Ius generally 62, 98, 153-4, 157, 159 ius commune 141, 148, 162-3 ius gentium 144, 148, 150-1 Justice generally 11-15, 41, 45-7, 51, 62-7, 86, 97, 109, 144-5, 161, 169, 175 administration or exercise of (also royal, seignorial, feudal) 24, 32, 41, 49-50, 68, 82-8, 901, 97, 103, 109, 114-118, 122, 130, 140, 144, 158-9, 161-4 divine 35, 39, 50, 61, 113, 148 iustitia 46-7, 62, 109, 114 Justinian 101, 107, 111, 114, 12930, 137, 144, 150, 158, 164 Kant, Immanuel 1, 128, 180-2 Kantorowicz, Ernst H. 54, 109, 132, 173 Kingship 29, 32, 34, 44-5, 47, 52-5, 62, 70, 103, 114, 137, 140 Lex regia 129-40, 157, 164, 175 Liberty

208 as freedom 5-12, 18-9, 25, 725, 91, 98, 121, 150, 156-61, 166, 169, 172-8, 179-80 liberties 18, 68-9, 92, 98-9, 120-8, 138, 178, 180 liberalism 7-11, 177 Locke, John 7-8, 10, 98, 181 Monarchy 34, 44-5, 66-9, 77, 102, 108, 117, 125, 132, 134, 149-50 Natural Law (also ius naturale) 11, 28, 30, 62, 75, 98, 137, 143-64, 168, 181 Ordeal 85-7, 162-3 Pope (also papal) 34, 42, 53-4, 98, 102-19, 132-8, 146-57, 161, 163, 173, 175 Potestas (also potestatis) 104, 108, 153-4, 156 Prince (also princeps, principatus) 11, 33-4, 70, 79, 82, 85, 90, 92, 102, 108-111, 123, 129-138, 144-50, 158-65, 172, 175-6 Public law 69, 117, 129, 132-40, 148, 174-5 right 128-9, 132-41, 148, 1589, 163-4, 176-7, 181 ius publicum 130, 135, 141, 148

Index respublica (also res publica) 32, 52, 132, 136, 148 Regnum 49, 104-5, 132, 136, 140, 157, 173-4 Renaissance 27, 66, 68, 97, 101, 149, 165, 176 Rex 44, 46-7, 132-3 Roman empire 31, 33, 42, 57, 68, 75, 173 Roman Law 27, 41-56, 62, 69, 756, 97-8, 101-2, 106-7, 111, 114, 129-30, 133, 136, 138, 140, 143, 147-53, 158, 162-3, 174 Rousseau, Jean-Jacques 10, 177, 180-1 Sacerdotium 104-5, 157 Slavery 7, 24, 30, 67, 71-5, 98, 149, 160 Statutes 61, 109, 112, 120-30, 1389, 174 Stoic 28, 62, 71, 143, 168 Text (also textual) 56, 101, 104-20, 161-2, 166-7 Theology 32, 52, 102, 112, 166-73 Ulpian 62, 135, 143, 145, 150 Universitas 128, 132, 141, 173-4 Utilitas publica (also public utility) 134-40, 148, 164, 176-7