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

University of California Press

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Roman, Germanic, Christian emperor. His claims of universal rulership impinged not only on the authority of every other monarch's sovereignty but also on the inviolability of the law. By the end of the twelfth century, the jurists conceded that law was not immutable. The emperor, kings, and even city-states could...