Politics in Western Jurisprudence

Kenneth Pennington

In his work Politica methodice digesta that he published in 1603 Johannes Althusius defined politics as the “art of associating (consociandi) men for the purpose of establishing, cultivating, and conserving social life among them.” Althusius was an early modern German jurist who firmly believed that human social institutions were and should be regulated by law. “Common law (lex communis), which is unchanging, indicates that in every association . . . some persons are rulers (heads, overseers, prefects) or superiors, others are subjects or inferiors. For all government is held together by imperium and subjection.” “Local laws (leges propriae) are those enactments by which local associations are ruled.” Althusius did not think of politics as being primarily the art of conflict but the art of living together. Law provided the foundation of a community’s social structure.

            Althusius lived in the waning years of the Ius commune, the common law that was taught in all of Europe’s law schools until the Protestant Reformation. It was not a set of statutes. Rather it was a set of norms and a jurisprudence that was based on ancient Roman, canon, and feudal law. It provided a rich source of jurisprudence for all European jurists. Although he was a Protestant, Althusius drew heavily upon legal traditions and sources of Pre-Reformation Europe. His Politics is studded with references to Hostiensis (Henricus de Segusio), Panormitanus, (Nicolaus de Tudeschis), Bartolus of Sassoferrato, Baldus de Ubaldis and many others. He summarized five centuries of jurisprudence in the Ius commune that dealt with all aspects of human concourse.

            The Ius commune was born in the late eleventh century. In the early Middle Ages, Europe was a land without jurists. With the establishment of law schools, first at Bologna and then in other Italian, French and Spanish cities, jurists began to discuss issues that may be broadly defined as political. In the modern world we primarily think of politics as a continuing struggle between parties with differing ideological and economic beliefs. From the thirteenth to fifteenth the Italian city states did have competing, organized parties striving for control of political institutions of their communities. The rest of Europe, for the most part, did not. Medieval jurists dealt with political matters in two ways. They analyzed and developed legal rules for the governance of political institutions from the office of the prince to the corporate governance of cities, secular and ecclesiastical corporations (guilds, cathedral chapters, monasteries), and representative assemblies. The jurists were also called upon to render opinions on legal questions that arose from political conflicts in medieval society. They became experts who were asked to solve problems, answer questions, and advise princes. Law was established as an important branch of learning, and jurists became an indispensable class in the political life of European society.

1. The Jurisprudence of Sovereignty in the Twelfth and Thirteenth Centuries

            Law became important in political debates of the second half of the eleventh century. The conflict between Pope Gregory VII (1073-1085) and the German Emperor Henry IV (1056-1106) generated a mountain of literature. One of the first signs that law would play a role in political disputes was a treatise written by a certain Petrus Crassus. He used Roman and canon law to defend Henry IV and cited Justinian’s Institutes to establish the principle that kingdoms cannot be ruled without laws.

            As law became important in politics and in all other parts of medieval society schools were established to teach it. Stories circulated about how the teaching of law originated. Not surprising some of these tales credited rulers with encouraging the teaching of Roman law. One of the most intriguing is a report by a German chronicler, Burchard of Biberach, that Matilda, Countess of Tuscany, petitioned Irnerius to teach the books of Justinian’s compilation. Whether the story is true or not it reflects an assumption of the early twelfth century that rulers were interested in fostering the study of ancient Roman law and that the knowledge of law would enhance a ruler’s authority. In any case Irnerius was a major figure of the early twelfth century who taught law in Bologna, advised the Emperor Henry V (1106-1125), and served as a judge in Tuscany. Legal historians generally credit him and an even more shadowy figure, Pepo, for establishing Roman law as a field of study in Bologna.

            The reign of the German emperor Frederick I Barbarossa (1152-1190) marked the beginning of the jurists using their recondite knowledge in the service of the prince. Frederick recognized the importance of jurists and protected the Law School at Bologna with an imperial decree, the Authentica Habita (1155), that granted the students at Bologna special privileges. Three years later at an imperial Diet in Roncaglia (near Piacenza) Frederick opened the assembly with a with an oration that contained a remarkable number of references to texts of the libri legales, the textbooks used at Bologna. The emperor tacitly cited Justinian’s Digest, Code, and Institutes to justify his rule. The texts of the libri legales legitimized his authority but also protected the rights and liberties of his subjects. When he proposed new laws, as he did at Roncaglia, he promulgated them but, he said, the people confirmed them by accepting them through customary usage. He proclaimed that laws must be just, possible, necessary, useful, and suited to the time and place. He concluded by pointing out that one may not judge laws after they have been established. Rather one must judge according to the laws. All of these points were taken from the libri legales.

            Frederick’s speech at Roncaglia was not an isolated example of the importance of law for imperial rhetoric and policy. Godfrey of Viterbo wrote a poem that exalted Frederick’s legislative authority and employed the standard metaphors of the new jurisprudence to describe the imperial office: the emperor was living law and could promulgate, derogate or abrogate law.

            Frederick promulgated new laws that treated the emperor’s rights and prerogatives in Italy at Roncaglia. An Italian chronicler wrote that Frederick summoned law professors from Bologna to advise him on his imperial rights that were due to him. One of the laws is particularly instructive.

The prince possesses all jurisdiction and all coercive power. All judges ought to accept their administration from the prince. They should all swear the oath that is established by law.

This law was entirely based on principles of Roman law. Frederick did not know Latin and was not educated in law. He gathered men around him who were experts of the libri legales, the new legal science. European princes would follow Frederick’s lead for the next 700 years. They gave jurists positions of power and authority in their curiae and used them as trusted and advisors. The laws that were promulgated at Roncaglia began a long tradition of medieval jurists’ contributing to the formation of a jurisprudence of sovereignty.

            It is instructive to compare the promulgation of King Henry II (1154-1189) of England’s Constitutions at Clarendon (1164) to Frederick’s legislative work at Roncaglia. Henry made no claim to have the authority to legislate. He gathered his barons and bishops together to “recognize” royal liberties and prerogatives. A “recognition” of law was the same term used to discover the facts of a case by jurors in early English writs. In England law was not a manifestation of royal prerogative; it was a fact that could be discovered by examining the customs of the realm. There is no trace of the new jurisprudence of monarchical authority in the rhetoric that justified the Constitutions. The English kingdom would only begin to be influenced by the legal theories of sovereignty of the Ius commune in mid-thirteenth century when the author called Bracton attempted to describe the prerogatives of the king using some of the same texts and language that were used to exalt Frederick Barbarossa’s authority at the Diet of Roncaglia.

            A story that circulated among the jurists illustrates the authority that jurists began to exercise in medieval society. The setting of the story was the Diet of Roncaglia. It may or may not be true. The protagonists were two of the four great doctors and teachers of Bologna, Bulgarus and Martinus. Frederick had summoned these experts to Bologna to advise him. While riding with them on horseback on day, Frederick asked them whether according to law he was the Lord of the World (dominus mundi). The idea of the emperor being the “dominus mundi” was probably inspired by a passage in the Justinian’s Digest. In a passage taken from a commentary on the Rhodian Law of the Sea, the Emperor Antonius declared that he was the “Master of the World” (tou kosmou kurios). Another text of Roman law became closely associated with the imperial title in the minds of the jurists. In a law that was included in his Code, Bene a Zenone, Justinian did not claim the title, Lord of the World, but he did assert that the emperor could be understood to own all things. If the emperor owned all things, it was a short step for the jurists to conclude that the emperor was, indeed, the Lord of the World.

            Frederick must have heard from people in his court that the emperor had these grand titles. He asked the jurists what authority and prerogatives such titles bestowed upon the imperial office. “Am I legally the Lord of the World,” he asked. The tradition reported that Bulgarus reported that he was not the lord over private property. Martinus responded that he was, in fact, Lord of the World. Frederick rewarded Martinus’ sycophantic answer with a gift of a horse.

            In the second half of the twelfth century the jurists who glossed Justinian’s codification dealt with these texts and others that touched upon the emperor’s prerogatives. They concluded that the prince did not have jurisdiction over his subjects private property under normal circumstances. Rights to private property were protected by natural law. One point should be emphasized. When Frederick asked whether he was Lord of the World, no jurist interpreted his question as asking whether other kings were subject to him. That question did not interest them. It would be left to Pope Innocent III to broach that question at the beginning of the thirteenth century. The twelfth-century jurists focused on his authority to take the rights of his subject away and his prerogative to abrogate law arbitrarily. In other words they were interested in the relationship of the prince to the law.

            The Roman law libri legales gave the medieval jurists very fragmented texts upon which they could construct a theory of princely authority and the prince’s relationship to the law. There is little in the Digest on a theory of law. A text in the Digest from the Roman jurist Gaius stated that natural reason established law that is observed among all human beings. It is call the Ius gentium or law of peoples. This law and the customs and laws of individual cities (civitates) constituted the laws under which human beings lived. The libri also contained some definitions of terms at the beginning of the Digest. The medieval jurist who began to study and comment upon ancient Roman law did not, however, have a coherent set of texts upon which they could create a jurisprudence that treated the nature of law. That task was taken up by Gratian who began to teach canon law at Bologna in the early twelfth century.

            When Gratian began teaching at Bologna, Irnerius was teaching Roman law at about the same time. Until recently the only secure fact that we knew about Gratian was that he compiled a collection of canons that later jurists called the Concordia discordantium canonum. This cumbersome title was later shortened to the Decretum. It very quickly became the most important canonical collection of the twelfth century and later became the foundation stone of the entire canonical jurisprudential tradition. It was not replaced as a handbook of canon law until the Codex iuris canonici of 1917 was promulgated.

            Since the work of Anders Winroth in 1996 we have learned much more about Gratian. Winroth discovered four manuscripts of Gratian’s collection that predated the vulgate text of the Decretum. Since then another manuscript of this early recension has been discovered in the monastic library of St. Gall, Switzerland. Although all five manuscripts must be studied in detail before we fully understand their significance, some conclusions can already be made. The first recensions of Gratian’s work were much shorter than the last recension. The differences between the recensions mean that Gratian must have been teaching at Bologna for a significant amount of time before he produced his first text that circulated. There was a significant period of time between when he began teaching and the final version of the Decretum. Most evidence now points to Gratian’s having begun his teaching in the 1120's. He continuously revised his text until the late 1130's or early 1140's. In spite of its defects — more organization was its primary flaw — it immediately replaced all earlier collections of canon law in the schools.

            Gratian became the “Father of Canon Law” because the last recension of his collection was encyclopedic and because with his “case method” he provided a superb tool for teaching. His vulgate version of the Decretum was a comprehensive survey of the entire tradition of canon law.

           Gratian introduced jurisprudence into canonical thought. His first innovation was to insert his voice into his collection to mingle with those of the Fathers of Nicaea, St. Augustine, and the popes of the first millennium. He did this with dicta in which he discussed the texts in his collection. He pointed to conflicts within the texts and proposed solutions. His dicta made the Decretum ideal for teaching, and the Decretum became the basic text of canon law used in the law schools of Europe for the next five centuries.

            In addition to the novelty of his dicta, Gratian created a collection of canon law that was organized differently than any earlier collection. In his earliest version of the text, Gratian focused on 33 cases (causae). In each case he formulated a problem with a series of questions. He then would answer each question by providing the texts of canons that pertained to it. When the text of the canon did not answer the question without interpretation or when two canons seemed in conflict, Gratian provided a solution in his dicta. Gratian’s hypothetical cases were effective teaching tools that were ideally suited to the classroom. Gratian was the first teacher to use cases to teach law.

            Perhaps the most important parts of Gratian’s work for the beginnings of European jurisprudence were the first twenty distinctions of the 101 distinctions (distinctiones) in the first section of his Decretum that he added to his original text. In these twenty distinctiones he treated the nature of law in all its complexity. Gratian must have realized that he could not teach law by looking only at cases and questions of fact. He had to make his students understand the sources of law. As I pointed out above, the libri legales did not discuss the relationship between the different types of law. Gratian did that in his first twenty distinctions. These twenty distinctions stimulated later canonists to reflect upon law and its sources.

            Gratian began Distinction one with the sentence: “The human race is ruled by two things, namely, natural law and usages” (Human genus duobus regitur naturali videlicet iure et moribus). The canonists grappled with the concept of natural law and with its place in jurisprudence for centuries. Their struggle resulted in an extraordinary rich jurisprudence on natural law and reflections on its relationship to canon and secular law. Brian Tierney has noted that “natural law <did not> constitute a significant limitation on the legislative competence” of the prince. It was also not “a kind of detailed pattern of legislation laid up in heaven.” Rather, natural law was provided a moral basis for deciding whether a given enactment was a good and just law. It was a set of norms that evolved in European jurisprudence through a long gestation in the arguments of the jurists. In some cases, the jurists found justifications for their arguments about which norms were based on natural law in sacred scripture. In others, they could discover no precedents in sacred scripture. Instead they relied on norms that had evolved in the Ius commune. These norms conformed to reason, reason so compelling that they expressed eternal truths. We shall see that the jurists also used norms and principles that they defined as natural law to limit the authority and prerogatives of the prince.

            Gratian concluded that natural law dictated that “Each person is commanded to do to others what he wants done to himself,” connecting natural law with the biblical injunction to do unto others what you would have them do unto you (Matthew 7.12). By defining natural law as the duty to treat other human beings with care and dignity, Gratian stimulated jurists to reflect upon a central values of natural law: the rendering of justice and the administering of equity in the legal system. Most of the texts that Gratian used were taken from the Etymologiae of Isidore of Seville ©. 560-636). Isidore combined the various traditions of natural law that had circulated in the ancient world. He defined it as being the law common to all nations that was established by the instigation (instinctus) of nature, not by human legislation. Examples of natural law were marriage and the procreation of children, “one liberty of all human beings (una libertas omnium),” and the acquisition of property taken from the heavens, earth, and sea. Natural law was, as the Roman jurists had earlier concluded, natural reason. To define the contents of natural law Gratian placed Isidore’s definition of natural law on the first page of his Decretum (D.1 c.7). Together with the texts of Roman law in Justinian’s compilation, Gratian’s Decretum became one of the standard introductory texts for the study of law (the Ius commune) in European law schools, and Isidore’s definition became one of the most important starting points for all medieval discussions of natural law.

            Gratian also discussed the various types of human law: unwritten custom, civil law, the law of a city or of a people, including definitions taken from Roman law. Law was a hierarchy. Under Gratian’s schema laws were not simply a reflection of different usages in various communities. All law had to be evaluated according to standards that transcended human institutions. Law was also intimately connected to people. The prince could not exclude his subjects from being an central source of law. The people could not only make law, they could approve it. Gratian ended his treatment of legislation by defining how law became valid: “Laws are established through promulgation and validated when they are approved by the acceptance of the people.” Remarkably, Frederick Barbarossa used these very words when he described his conception of his legislative authority at Roncaglia.

            Gratian and Frederick marked the beginning, not the end, of the jurists contemplation of the role of the prince in making law. The jurists read the texts in the libri legales that described the emperor’s supreme legislative authority and were uncertain how to reconcile the authority of the medieval prince with the powerful tradition of customary law. Customary law had dominated Europe for centuries. Almost all local legal systems were based on customary law in the twelfth century. Frederick Barbarossa’s legislation at Roncaglia is one of the few examples that we have in the twelfth century of a monarch’s consciously exercising his authority to make new law.

            The twelfth-century jurists did not agree about the relationship of custom to new legislation. Irnerius wrote that custom that was established by long usage should be preserved, particularly if it were not contrary to reason and did not contradict written law. He did not, however, think that custom could abrogate the decrees of the prince. “All power of making law has been transferred to the prince.” Other jurists argued that under certain circumstances, particularly with the tacit approval of the prince, custom could derogate, if not abrogate, law. A maxim began to circulate in legal circles that “custom was the best interpreter of law.”

            During the course of the twelfth century jurists focused much more on the power of the prince to make new law than on the right of the people to establish and be governed by their own customs. A few jurists noted that society needed new laws because change demanded it. By the end of the twelfth century canonists had created a new concept to describe the law promulgated by the prince or by governing institutions: positive law (ius positivum). The term remains a fundamental legal concept in our understanding of law.

            The change from a legal system that recognized custom as the primary source of law to one that gave primacy of place to positive law was a difficult one. Southern European societies made the transition more quickly and easily than did those of Northern Europe. The Italian city states were the first to codify their customs and revise those codifications regularly as their institutions and courts evolved. Pisa, for example, produced a code of its laws by the middle of the twelfth century.

            Gratian, Irnerius and the early jurists took most of their assumptions about law and it relationship to princely authority from Germanic customary law and feudal law. Customary law emphasized the contractual relationship between the people and the prince. Consequently for early jurists the prince had a sacred duty to defend the laws and customs of the land. The prince was bound by the law. They thought that law should be reasonable and just. Most importantly, the prince could not exercise his legislative authority arbitrarily.

            At the beginning of the thirteenth century the jurists developed new ways of looking at law. Until then jurist focused on the content of law when they decided whether a law was just or not. They presumed that law must be moral, ethical, equitable, and, most importantly, reasonable. As new theories of legislation emerged from the Ius commune, the jurists began to look at the sources of human law and the institutions that produced positive law. It was then that they discovered the will (voluntas) of the prince as a source of law. When they introduced the will of the prince into political discourse, they created a new political language that became “the basis of a new philosophy of law with Marsiglio <of Padua> and <much later with> Hobbes and was the original kernel of the recently dominant theory of legal positivism.” The jurists were the first to look upon the will of the prince as being a primary source of law. A canonist, Laurentius Hispanus (ca. 1190-1248) was the first jurist to peer into the body of the prince to find his will.

            Pope Innocent III (1198-1216) inspired Laurentius to reflect upon the will of the legislator. No pope or other medieval ruler shaped the political thought of the medieval jurists more than Innocent. In his decretals the pope exalted papal political power. Innocent emphasized the pope’s fullness of power (plenitudo potestatis) within the Church. Although the term was coined in the early Church, Innocent found it particularly useful for describing his authority. During the thirteenth and fourteenth centuries, secular rulers adopted papal terminology to describe their power and authority.

            Innocent issued a decretal letter, Quanto personam, in 1198 in which he made an unprecedented pronouncement on the roots of papal authority. He claimed that the pope exercised divine authority when he granted a bishop the right to leave his church.

God, not man, separates a bishop from his church because the Roman pontiff dissolves the bond between them by divine rather than by human authority, carefully considering the need and usefulness of each translation. The pope has this authority because he does not exercise the office of man, but that of the true God on earth.

Laurentius quickly understood the implications of Innocent’s rhetoric. He believed that royal and papal authority was divinely ordained. That was a widely-held idea in late antique, medieval, and early modern political thought. Innocent, however, took this commonplace of medieval political thought and took it a significant step further. He asserted that the pope’s authority rested upon divine authority and also that the pope shared in God’s authority. That was a significant innovation. For the future it meant that the pope could exercise power that had hitherto been reserved only to God. Areas of law that had earlier been defined as based on divine law — marriage and vows especially — could now be subject to papal authority. If the pope shared authority and power with God, he could abrogate or derogate divine law that was formerly beyond his jurisdiction. When Laurentius commented upon Quanto personam he defined a ruler’s legislative authority in a novel and unprecedented way:

Hence the pope is said to have a divine will . . . O, how great is the power of the prince; he changes the nature of things by applying the essences of one thing to another . . . he can make iniquity from justice by correcting any canon or law, for in these things his will is held to be reason (pro ratione voluntas) . . . And there is no one in this world who would say to him, “Why do you do this?” . . . He is held, nevertheless, to shape this power to the public good.

No jurist had ever made the claim that the prince could make laws that were unreasonable and unjust. The jurists always agreed that laws should be just and be reasonable. Laurentius, however, asserted that reason was not the only standard by which law should be judged. The will of the prince and his will alone could be considered a source of human law. Earlier jurists had never distinguished clearly between the content of law and the source of law. Laurentius was the first jurist in European jurisprudence to argue that the content of law had no necessary connection to its source. It had been a doctrine of faith among the jurists who commented on Gratian’s tract De legibus that laws that were not reasonable were null and void. Laurentius, however, argued that the will of the prince must be supreme. He did not, however, argue that the prince could act arbitrarily. Later jurists did not use the maxim that he cited, “Pro ratione voluntas” (taken from Juvenal’s Satires) as a justification for tyranny.

            Frederick Barbarossa’s jurists who discussed the authority of the emperor in the twelfth century had a different and more primitive view of monarchical authority. When they called the prince the “Lord of the World” and declared that he was “legibus solutus” (not bound by the laws), they focused on his status. The prince was sovereign, he was superior to the law, but he had to submit himself to the law. They did not explore the source of law or of the prince’s authority or the relationship of the prince and the law.

            The reason for their reluctance to confront the issue of the relationship of the prince and the law was primarily because n the twelfth century the prince was not the only or even the main source of law in society. Only in the thirteenth century when princes began to legislate did the jurists began to think about the source the prince’s authority and to develop new definitions of the prince’s power.

            Henricus de Segusio, or Hostiensis, († 1271) was one of the most important and influential jurists of the thirteenth century. His career took him to Paris, London, and Rome. He wrote the most extensive commentary on canon law produced by any jurist in the thirteenth century. His work is characterized by a deep understanding of the political world, secular and ecclesiastical, and a profound interest in the language of political power and authority.

            Hostiensis was sensitive to legal questions that touched the structure of institutions. He developed a jurisprudence that described the power of secular and ecclesiastical princes in remarkably new ways. More than any earlier jurist he delved into the meaning of the terms that the jurists been accustomed to use when they described power and authority in medieval society. He extensively analyzed the traditional terminology. He explored the term “Plenitudo potestatis” (fullness of power) that had long been used to describe the power of the pope and that was beginning to be used to describe the authority of the secular prince in minute and careful detail.

            Like Laurentius Hispanus, Hostiensis was inspired by Pope Innocent III. Even more than Laurentius he emphasized the divine foundations of papal power. He decorated Innocent’s claims in Quanto personam with extravagant rhetoric. While commenting on Innocent’s decretal letters he wrote that all political authority comes from God. All princes exercised their authority by divine mandate. The pope, he asserted, had a singular status. Hostiensis based his commentary on Laurentius’ but greatly enhanced the pope’s power. Whatever the pope does, he wrote, he acts on God’s authority. The pope is the vicar of God. The curia of the pope in Rome was God’s curia. Whatever the pope does is licit as long as he does not err in the faith. Whenever he acts “de iure” he almost always acts as God.

            The pope exercised divine authority and presided over a consistory that reached from heaven to earth. Pope Innocent III might have thoroughly relished Hostiensis rhetoric. One inexorable conclusion that one might draw from Hostiensis commentary is that if pope’s authority is divine, then his law must also be divine. This logical conclusion did not escape Hostiensis. Divine law is the “Ars artium” (Science of sciences) that comprises human and canon law. Roman law is divine because the emperors created the rules of procedure by divine inspiration. The emperor is the living law (lex animata) whom the Lord has given to men and to whom He has subjected the law. Canon law was also divine. Theology was the head of the Church, canon law the hand, and Roman law was the feet. Sometimes the hand of the Church leads the head; sometimes the feet. Hostiensis did not create a new jurisprudence of law but outfitted traditional definitions with remarkable metaphors.

            In one respect Hostiensis did break with early jurisprudence. He insisted that canon law was a part of divine law and that the pope, as vicar of God, promulgated laws that should be considered divine. A similar metaphor for the secular prince circulated in canon law. When princes issue laws, they are divinely promulgated through his mouth (leges divinitus per ora principum promulgatae). This is true, concluded Hostiensis, only indistinctly. Only the pope could promulgate law divinely. “The pope, not the emperor, is the general vicar of Christ.”

            Hostiensis’ most important and lasting contribution to the language of political thought was creating a new set of terms to describe sovereignty and the power of the prince. Roman jurisconsults introduced the jurists of the Ius commune to the basic language of sovereignty. The Roman jurisconsult Ulpian coined the most widely used terms defining the prince’s authority: “what pleases the prince has the force of law (quod principi placuit vigorem legis habet)” (Dig. 1.4.1) and “the prince is not bound by the law (princeps legibus solutus est)” (Dig. 1.3.31). Twelfth-century jurists used these two maxims to establish two principles: that the prince can legislate and that he can change law. The jurists also expressed the concept of legislative sovereignty with the maxim “an equal cannot have authority over an equal” (par in parem imperium non habet). This maxim expressed their conviction that a ruler could not bind his successor. No twelfth-century jurist permitted the prince to act or to legislate arbitrarily.

            Roman jurists called the emperor’s power to legislate, command, and judge “imperium” or “potestas.” Ulpian wrote that the Roman people had transferred “imperium” to him (Dig. 1.14.1). Most medieval jurists thought that the people’s bestowal of power on the prince could not be revoked. Borrowing from theologians’ terminology describing the power of God, Hostiensis gave the pope a glorified new definition of his authority. The pope and God both ruled by a “potestas absoluta and potestas ordinata.” Since Hostiensis thought that the pope promulgated law divinely he followed the logic of his theory and concluded that terminology describing God’s power should also apply to the pope. The pope was the first human being to wield divine power, but jurists soon bestowed “potestas absoluta” on secular princes.

            Like Laurentius before him Hostiensis blazed a new path for the jurisprudence of sovereignty. He separated legal thought from primitive Germanic ideas of kingship that law was custom and that the king was bound by the law. With his “potestas ordinata” the pope had the authority to exercise jurisdiction over positive law; “Potestas absoluta” enabled the pope to exercise extraordinary authority and jurisdiction. With this exalted power the pope could legislate in matters touching the laws of marriage and vows, areas of the law that had been considered a part of divine law and outside papal jurisdiction.

            “Potestas absoluta et ordinata” played a very important role in the future. Later jurists defined the prince’s power with these terms and sometimes concluded that the prince could take the rights of subjects away when he exercised his absolute power. In combination with Laurentius’ “pro ratione voluntas” the jurist used “potestas absoluta” to create more a sophisticated jurisprudence of sovereignty. The prince was the source of law. He was not always limited by reason or morality. Under some conditions the prince could promulgate laws that were contrary to reason. He could sometimes act contrary to the precepts of justice. The jurists justified these aberrations of political behavior by citing two other norms: the common good of society and great necessity. But by the later Middle Ages the jurists could defend the prince who acted contrary to law, custom, and who violated individual private rights. Hostiensis laid the foundations for later jurists to embrace an absolutism that ignored the traditional rights of subjects.

            Along side this development, however, medieval “constitutionalism” remained an important strand of thought in medieval jurisprudence. The jurists who were reluctant to adopt the theory of absolutism emphasized limitations on the prince’s power. Their first line of defense against arbitrary power was the rights of subjects. From early in the twelfth century jurists asserted that property rights were founded on precepts of natural law or the “ius gentium.” Further, the prince did not have the right to alienate his lands. When the jurists argued that property rights were grounded in natural law they could claim that the prince could not violate those rights since he had no jurisdiction or sovereignty over natural law. It was a higher law that transcended human positive law.

            The alienation of property was a key issue for the jurists. From the late twelfth century they realized that rights that attached to the office of the prince and not to his person belong not to the prince but to the common good. A forged document drew their attention to the issue. In the so-called Donation of Constantine the emperor was purported to have granted his imperial rights to the Church. The document was a forgery of the late eighth or early ninth century. The text of the forgery was included into canon law by Gratian. In the early thirteenth century Pope Honorius III (1216-1227) issued a decretal letter, Intellecto, in which he asserted that the King of Hungary could not alienate royal lands that injured his kingdom and the crown. Honorius laid down the doctrine of inalienability in canon law. The canonists immediately expanded the principle to the ruler of the Church. A little later the Roman lawyer Accursius argued that the Donation of Constantine was not a binding document. The emperor, he concluded, could not injure the rights of future emperors (par in parem imperium non habet). The jurists established the doctrine of inalienability of rights as being a significant limitation on monarchical power.

            The jurists of the Ius commune created another powerful limitation on the power of the prince: the “ratio iuris” (reason of law) and the norms of law. They coined legal maxims that were taken from Roman law, early medieval legal thought, and from their own analysis. These maxims were touchstones of justice and equity in law. These maxims can be found in their commentaries, the decretals of popes, and secular laws. They provided a benchmark by which the acts of the prince could be judged.

            In the thirteenth century the jurists began to discuss monarchical power and authority and create a jurisprudence based on contemporary secular law. The Emperor Frederick II (1212-1250) issued the first royal code of laws in 1231, the Constitutions of Melfi, also known as the Liber Augustalis. In the prologue to his codification he (or more likely, his jurists) discussed the authority of the prince. The prince is an instrument of God. His duty is to establish laws, to promote justice, to promote justice, and to correct and chastise wrongdoers.

Thus we, whom God has elevated beyond any hope man might have cherished to the pinnacle of the Roman empire and to the singular honor of all other kingdoms at the right hand of divine power, desire to render to God a two fold payment for the talents given to us, out of reverence for Jesus Christ, from whom we have received all we have.

In a later constitutions Frederick contrasted his authority with that of the ancient Roman emperors.

It is not without great forethought and well-considered planning that the Quirites [Roman citizens] conferred the right and imperium of establishing laws on the Roman prince through the Lex regia. Thus the source of justice might have its source from the same person that defends justice. He who ruled through the authority established by Caesar.

The descriptions of authority that we find in the Liber Augustalis resonant and reverberate with the doctrine that we have describe in the Ius commune.

            The pope was a ruler who claimed universal jurisdiction over all Christendom. When Frederick Barbarossa asked Martinus and Bulgarus if he were the Lord of the World, the jurists ignored the obvious meaning of the question: did the emperor hold a higher office and exercise jurisdiction over kings? Martinus and Bulgarus interpreted Frederick’s question as being whether he could take the rights of his subjects away. Could the emperor take away the property rights of his subjects?

            Frederick Barbarossa may have had more interest in his status in relationship to other kings than the jurists did. The English King Henry II wrote a letter to Frederick in which he bestowed the title “Dominus mundi” on the emperor. Henry might have thought that he pleased the emperor with that title. However, modern historians have found the question whether this indicated that the emperor claimed superiority over kings much more interesting than the medieval jurists did. They have argued that the national monarchies could not be sovereign until they had been freed from the yoke of imperial universal jurisdiction. Yet this question did not seem to be important to the jurists. None of them broached the question whether the emperor exercised e de facto or de iure sovereignty over other European Christian princes.

            Some modern historians have asserted that the “state” did not exist in medieval Europe because papal and imperial sovereignty could not exist under the umbrella of these two universal rulers. How could states exist when jurists argued that the pope had the right to judge princes and their subjects in a number of different matters? A true state could not exist if its sovereignty was not untrammeled. Some jurists did, however, present an exalted view of imperial power and prerogatives. The canonist Johannes Teutonicus wrote in a gloss that eventually became a part of the Ordinary Gloss of canon law:

The emperor is over all kings . . . and all nations are under him . . . for he is the Lord of the World . . . even Jews are under him . . . and all provinces are under him . . . unless they can show themselves to be exempt . . . none of the kings can have prescribed an exemption, since prescription has no place in this . . . A Kingdom cannot have been exempted from imperial authority, since it would be without a head . . . and that would be monstrous. Rather all must give the emperor tribute, unless they are exempt . . . All things are in the power of the emperor.

If Johannes had been in the emperor’s company at Roncaglia, Frederick would have probably given him a stable of horses for his glorious summary of imperial authority.

            Not all the jurists found Johannes’ glorification of imperial power edifying. Sometimes their reaction was clearly based upon a nascent sense of national identity. In reaction to Johannes’ gloss the canonist Vincentius Hispanus (ca.1180-1248) would have none of his exaltation of Teutonic virtue.

Make exception, Johannes Teutonicus, of the Spanish, who are exempt by the law itself. They did not admit Charlemagne and his peers into their lands. I, Vincentius, say that the Germans lost their imperium through their own stupidity . . . Only the Spanish have obtained imperium through their virtue.

Oddly, Pope Innocent III (1198-1216) was the first to state categorically that the kings were independent of the emperor. Innocent issued a decretal letter, Per venerabilem in 1202 in which he stated that the king of France recognized no superior in temporal affairs. Innocent’s decretal was included into canonical collections, and the jurists began to analyze Innocent’s comment. Some concluded that kings were subject to the emperor de iure, but not de facto. Others argued that kings were entirely independent and free from imperial jurisdiction. They created a maxim to describe royal independence: “Rex in regno suo imperator est” (A king is emperor in his kingdom). By the middle of the thirteenth century this maxim had become a commonplace.

            Modern historians have argued about the maxim’s precise meaning. Some historians have pointed out the maxim is not an unambiguous justification for royal independence from universal imperial rule. In the period from ca. 1270-1330, the jurists of the Ius commune used the maxim to argue three different points. First that every king is independent of the emperor and that every king can exercise the same prerogatives within his kingdom as the emperor. The king was, in other words, the prince of Roman law. Second that the kings were not independent of the emperor but that they did have the same prerogatives as the emperor in their kingdoms. Third, that kings were independent of the emperor but could not exercise the same prerogatives as the emperor in their kingdoms. They were not princes. Whatever the case, by the late Middle Ages the jurists had created a sophisticated and nuanced jurisprudence of sovereignty that shaped the political arguments of Early Modern European thinkers.

2. The Importance of Feudal Law for Political Institutions in Medieval Society

            The jurists created a vigorous doctrine of kingship and defined the relationship of the prince and the law with originality and creativity. Roman law provided them with their terminology, but Christian conceptions of justice and duties shaped their thought. Feudal law revealed to the jurists another side of the prince’s nature: his limitations and duties to his subjects.

            Feudal law was born in an age without jurists. It was customary, unformed, and existed in a wide variety of forms. There was no pervasive paradigm of European feudal law as there was for Germanic customary law. The sources from all over Europe in the period 800 to 1000 contain the terms lord (dominus), vassal (vassalus), fief (beneficium or feudum). Later jurists would carefully analyze and define their meaning. Historians, however, have learned that when they find these words in early medieval sources, they cannot simply assume that these words describe the lord and vassal relationship that is found in later feudal law: that a lord bestowed a fief upon a vassal in return for military service. The vassal swore homage and fealty to the lord. This was the basis of the feudal contract and established a complicated set of norms that governed the princes duties and obligations to his vassals. It also defined a vassals duties to his lord.

            The word that described a fief in the tenth and eleventh centuries (sometimes, but not always, a piece of land) a was generally beneficium. Although the word, “feudum,” from which the English word feudal is derived, is found in early sources, it replaces beneficium as the standard word to describe a fief only during the twelfth and thirteenth centuries. For political relationships the feudal contract had several advantages over a contract in Roman law. The feudal contract could be inherited and broken for political reasons. When a feudal contract passed from one generation to another, the bonds that the contract cemented were renewed in public ceremonies that reminded each party of its obligations and duties.

            Law can exist without jurisprudence, but law without jurisprudence creates ambiguities that can be destructive for the public good. Unless there are jurists to interpret the law, the rights of persons and institutions are never secure. Although Roman and canon law had standard libri legales there were no books or standard texts for feudal law. By the twelfth century feudal customary law began to define far more than just the relationship between and lord and his vassal. Secular and ecclesiastical institutions were involved in legal relationships that were feudal. Clerics took oaths to their bishops; kings took oaths to the pope. There was a need for written law and a jurisprudence that would provide an interpretive tool to understand what these oaths meant. Monasteries had feudal ties with persons and institutions. Bishops had feudal relationships with men and towns. Towns had feudal contracts with other towns and persons. The nobility had traditional feudal contracts with vassals but also with towns. Feudalism, in other words, had become much more than contract that regulated and defined a relationship between a “lord” and a “vassal.” Lawyers who studied the new Ius commune at Bologna and other schools realized that texts were needed

            The books of feudal law were formed in the second half of the twelfth century out of disparate sources. Obertus de Orto, a judge in Milan, sent his son Anselm to study law in Bologna ca. 1154 and 1158. Anselm reported to his father that no one in Bologna was teaching feudal law. Obertus wrote two letters to his son (that may be rhetorical conceits) in which he described the law of fiefs in the courts of Milan. It may be that the primary reason why Obertus wrote these two letters was that a compilation of customary law was being undertaken by the commune of Milan. Whatever the case may have been, Obertus’ two letters became the core of a set of texts for the study of feudal law. Obertus put his letters together with other writings on feudal law, especially from Lombard law, to create the first of three “recensions” of the Liber feudorum (in the manuscripts the book was named Libri feudorum, Liber usus feudorum, Consuetudines feudorum, and Constitutiones feudorum). The manuscripts of the first two recensions reveal that there was no standard text. Some of them included eleventh and twelfth-century imperial statutes of the emperor’s Conrad II, Lothair II, and Frederick I. The second recension often contained the letter of Fulbert of Chartres and additional imperial statutes. Typical of legal works in the second half of the twelfth century the jurists and scribes added texts of various types (extravagantes) to this recension. Almost no two manuscripts contain exactly the same text. The jurists did not comment on the Liber feudorum of Obertus. The text’s entry into the schools must have been slow. The first jurist to write a commentary on the Liber was the jurist of Roman law, Pilius. He wrote his commentary on the second recension of the Liber feudorum ca. 1192-1200, probably while he was a judge in Modena. He did not comment on all parts of the Liber. Although the letter of Fulbert of Chartres circulated in many manuscripts he did not gloss it. He left the interpretation of Fulbert’s letter to the canonists (Gratian had placed the letter in his Decretum). This fact illustrates an important point about feudal law in the twelfth century: its jurisprudence was not the product of one area of law but of the Ius commune.

            The final or vulgate recension of the Liber feudorum added constitutions of the Emperor Frederick II, the letter of Fulbert, and other texts that had circulated in the twelfth-century manuscripts. Accursius, the most important jurist of Roman law in the thirteenth century, wrote a commentary based on Pilius’ in the 1220's. It may have gone through several recensions, not all by Accursius. Accursius also wrote the Ordinary Gloss on the rest of Roman law at about the same time. His authority and the importance of feudal law combined to give Liber feudorum with Accursius’ Ordinary Gloss a permanent place in the Ius commune.

            Feudal relationships generated legal problems and court cases in the later Middle Ages. The earliest reports of court cases involving feudal disputes and using feudal law date to the late twelfth century, and their numbers proliferate during the thirteenth and fourteenth centuries. As the number of these cases increased, jurists were called upon to write consilia (legal briefs) to solve them. I shall discuss some of the consilia that jurists wrote for feudal legal problems in section four below.             The feudal oath was the central element in the feudal relationship. The use of oaths to cement political and social relationships was not peculiar to European society. In almost all human societies oaths embedded in rituals create social bonds. The feudal oath of fidelity that a vassal took to his lord is almost emblematic of the popular and scholarly image of medieval social relationships. In the Liber consuetudinum Mediolani, a compilation of the customs of Milan that was promulgated in 1216, there is an oath that the vassal should take to his lord:

I, <James>, swear that henceforward I will a faithful man or vassal to my lord. I will not lay open to another what he has entrusted to me in the name of fealty to <my lord’s> injury.

The text of the custom enigmatically concludes: “Many things are contained in these words, which are difficult to insert here.” The sentence would have been puzzling, however, only to those who did not know feudal law. A thirteenth-century jurist reading this text would have recognized immediately that the compilers of the customs were referring to a letter of Bishop Fulbert of Chartres (1006-1028).

            By 1216 Fulbert’s letter had been the most important legal text for defining the oath of fealty for a century. The letter’s origins lie in a request that William V, count of Poitou and duke of Aquitaine made to Fulbert asking for advice about the obligations and duties that a vassal owed to a lord. William had troubled relationships with his vassals. In his reply (ca. 1020) Fulbert wrote a short treatise on feudal relationships that circulated fairly widely. Gratian treated clerical oaths in Causa 22 and placed it in the earliest version of his Decretum (C.22 q.5 c.18) ca. 1124. It became a locus classicus for canonistic discussions of the feudal contract and the relationship of the lord and vassal.

            Fulbert told William that when a vassal took an oath to his lord six things were understood to be contained in it whether explicitly expressed or not: to keep his lord safe, to protect him from harm, to preserve the lord’s justice, to prevent damage to his possessions, and to not prevent the lord from carrying out his duties. Fulbert alleged that he got this list from written authorities, but his exact source, if there were one, has never been discovered. For the next four centuries jurists cited Fulbert’s list of obligations and duties as being central to the feudal oath of fealty. The text in Gratian’s Decretum reads:

The form of fidelity that anyone may owe to a lord and vice versa, may be found in a letter of Bishop Fulbert.

Since I was asked to write something about the oath of fidelity, I have noted for you these things which follow from the authority of books. Whoever swears fidelity to his lord should always have six things in mind: safe, secure, honest, useful, easy, possible. Safe, namely, lest he injure his lord with his own body. Secure lest he not injure his secret interests or his defenses through which his lord can be secure. Honest lest he not injure his lord’s justice or in other matters which seem to pertain to his honesty. Useful lest he injure his lord’s possessions. Easy or possible, lest that the good, which his lord could easily do, he would make difficult, and that what would be possible, he would make impossible for his lord. A faithful man should pay heed to these examples.

It is not sufficient to abstain from evil, unless he may do what is good. It remains that he faithfully give his lord counsel and help in the aforementioned matters, if he wishes to be worthy of his benefice (fief) and safe in the fidelity that he has sworn. The lord also ought to render his duty to his faithful man in all things. If he does not, he may be thought of as faithless, just as he, who in consenting or telling lies will be perfidious and perjurious.

Huguccio (ca. 1190) was the first canonist to give Fulbert’s letter a close reading and extended commentary. At the beginning of his commentary he noted that many things are tacitly understood when someone took an oath, vow, and promise. He then discussed each of the six tacit obligations listed by Fulbert. A vassal could not injure his lord’s body without cause or unjustly. Huguccio interpreted the oath of fidelity by placing its obligations against the norms of the jurisprudence of the Ius commune. If there was cause or reason (causa et ratio) a vassal could injure his lord.. These two norms (cause and reason) were, perhaps, the most powerful in medieval jurisprudence and generally trumped any rule, law, custom, or statute. If the vassal was a judge or a magistrate — a social situation into which only urban vassals would probably fall — he could punish his lord if he merited it. According to Huguccio, Fulbert’s principle of honesty encompassed two points. A vassal could not injury a lord’s justice or his women. First he observed that according to customary law, even though it was unwritten, a vassal could not testify against his lord in court. Again he looked to others norms of the Ius commune to qualify the prohibition. If justice and cause demanded it, the vassal could testify against him because his lord had no justice. Then Huguccio turned to sexual morality. Perhaps he had read too many French lais about the sexual misconduct of the nobility. He defined vassal’s honesty as not violating the women who surrounded his lord. The lord’s wife and daughter were, understandably, not to be touched. Huguccio, however, also included any other woman in the lord’s home. In summary, the vassal should not do any dishonest thing in his lord’s house. This may be another example of Huguccio’s propensity to embrace moral absolutes, what later canonists called the “rigor of Huguccio.” In any case Johannes Teutonicus placed only his lord’s wife and daughter outside a vassal’s predatory field.

            Huguccio then turned to the vassal’s obligation to give his lord counsel and help. His first point was the vassal was only obligated to give aid when the lord needed help in licit and honest affairs. If the lord was injured a vassal should respond immediately, but within reasonable limits (moderatio inculpatae tutelae) and with attention to the admonition of Saint Paul in Romans 12:19: an enemy should be treated with respect; disarm malice with kindness. The concept of justifiable defense that Huguccio cited (moderatio inculpatae tutelae) is taken from Roman law and slowly penetrated the Ius commune during the twelfth century. It was typical of twelfth-century jurists to combine Roman and Biblical precepts to establish a legal norm.

            Huguccio then turned to the question of the moral and legal responsibility of a vassal to defend others. Nobody should sin for himself or for another, he reflected, but at the same time everyone has an obligation to defend anyone from injury. Huguccio’s presumption is completely contrary to the norms of British and American common law where the doctrine of nonfeasance has held sway. Under the influence of the Ius commune, however, most civil law legal systems have a duty-to-assist other persons in their jurisprudence. Huguccio had no doubt that every man had a duty to assist another person. For him the duty to render aid reflected in some way a person’s commitment to the common good. If everyone has an obligation to render assistance, he wondered, what is the legal force behind the vassal’s duty to help his lord? How would a vassal’s duty to a lord differ from his duty to aid others in distress? He found the answer to that question in a conciliar canon: “I say that the vassal is bound to his lord <by the oath of fealty> more willingly and more specially — just as in the conciliar canon from the Council of Toledo in Gratian’s Decretum. That canon stated that oaths to uphold promises make the breaking of those promises to be feared.” Huguccio quoted a phrase from the canon and expected that his readers would supply the complete quotation: “specific promises are more to be feared than general vows.” Later canonists followed Huguccio lead that insisted that a vassal must do more than just defend his lord when he is in danger. Alanus Anglicus (ca. 1200) formulated a lapidarian expression of the precept: “Although the oath of fealty does not expressly state it, a vassal should give heed that his lord may not be injured.” Tancred (ca. 1215) and following him, Bernardus Parmensis in the Ordinary Gloss (ca. 1245), insisted that persons who swore oaths of faithfulness and obedience must not only protect them from attack and harm but they were bound to protect them from plots and dangerous plans. This principle remained an important part of the oath of fidelity. It also shaped the mores of political action in European society for centuries.

            A vassal’s obligation to aid his lord militarily was Huguccio’s next topic. He formulates several hypotheticals. What if the lord wishes to seize his fief or his property? The vassal must not obey his lord unless his lord’s war would be just. The vassal is not bound to obey if his lord moved against him personally. What, however, if the lord moved against his son or his father? Huguccio’s answer relied on juridical distinctions drawn for the family, kin, and vassals of excommunicates. The vassal did not have to obey his lord when his son and father lived under the same roof. Otherwise, if his lord were waging a just war against his family, the vassal was held to obey his lord.

            Huguccio addressed his final topic at the end of his commentary. Fulbert’s letter laid down the norms that a vassal must adhere to if he were worthy of his fief. Huguccio noted that the other side of the coin was that if a vassal did not show himself worthy by violating these principles, his lord could take his fief (beneficium) away from him. He then linked the rules governing a vassal’s loss of his fief to the ecclesiastical sphere. What if, he asked, a cleric offered legal protection and assistance (patrocinium) in a case against his own church or against his bishop to whom he has sworn fidelity? Huguccio thought that the cleric should lose his benefice unless he was pursuing his own legal case or that of his own people. He concluded by noting that while their lords are excommunicated, those who have sworn oaths of loyalty are not compelled to obey them.

            The canonists who wrote after Huguccio expanded upon the jurisprudence that he created for the oath of fealty. Importing another definition from Roman jurisprudence, Alanus commented that a vassal who betrayed his lord fell under the Roman law of treason. The jurists liked that connection. A number of them repeated it. Johannes Teutonicus copied this gloss into his Ordinary Gloss where it remained a principle of feudal law until the end of feudalism. The Roman law of treason specified the death penalty for the crime. The canonists turned a traitor from a perjurer to capital felon. It was no small step. They marked a stage in the development of law in which the rights and honor of the lord became identified with much more than another person. He became the symbol of the territorial state. The Chansons de geste had long emphasized a warrior’s faithlessness as the ultimate betrayal (“trahison”) in a world of honor. At the beginning of the thirteenth century the jurists of the Ius commune followed the poets.

            Fulbert of Chartres’ letter in Gratian’s Decretum provided the canonists with an opportunity to enter directly into the feudal world. The church had long used oaths of obedience, and, as we have seen, the canonists saw the ecclesiastical oath as an institution governed by the same rules as the secular feudal oath of fealty. Canon law continued to contribute to the jurisprudence of feudal law after the twelfth century but did not produce any legislation as central as Fulbert’s letter. Pope Innocent III (1198-1216) touched upon feudal matters in many of his letters. Two of them entered the official collections of canon law under the title De feudis. One of these letters shaped feudal law in an important area: the right of a lord to bestow a fief when he had taken an oath not to bestow a fief on someone else. Feudal law in the later Middle Ages found its jurisprudential roots in Roman law, canon law and in secular legal systems. This cross-fertilization accounts for the vigor of feudal law until the end of the sixteenth century. As we shall see in part four of this essay the jurists used the norms of feudal law to define political relationships until the seventeenth century.

3. The Jurisprudence of Secular and Ecclesiastical Institutions

            Monarchy was the primary form of government in the Middle Ages. Although the Italian city states established republican forms of government in the twelfth and thirteenth centuries, by the fifteenth century most had reverted back to princes. As most medieval jurists, theologians, and people were, Dante was convinced that monarchy was the proper and legitimate form of government when he wrote Monarchia in the early fourteenth century. The legitimacy of monarchies were rarely seriously questioned.

            It was typical for medieval people to think of themselves as belonging to various collective organizations. Some of these groups were local. Others occupied a larger stage. In the twelfth century the jurists began to define the relationships of these organizations to one another and the legal rights of the individuals within them. The jurists named these organizations, secular and ecclesiastical, “universitates.” A good example of their thought is the canon law of ecclesiastical corporations, especially the legal status of the bishop to his chapter. The cathedral chapter constituted a “universitas” or corporation that represented the local church. By the thirteenth century, a bishop’s power and the exercise of his office was limited by a new conception of the bishop’s juridical personality that embraced the joint authority of the bishop and the cathedral chapter. The jurists of the Ius commune used rules and norms that the canonists developed and applied them to other corporate entities from secular gilds to church councils and, in part, even to the Roman curia.

            In the period between ca. 1180 and 1300, the canonists generally concurred that the bishop and chapter together constituted the basic administrative unit of the diocese. The canons of the cathedral chapter usurped the rights of the lower clergy and spoke for the people and the clergy of the entire diocese. To describe this new juridical entity, the canonists worked out corporate theories. In canonistic thought, the relationship of the bishop and the cathedral chapter divides into three categories: What the bishop can do in the name of the church; what the chapter may do without the consent of the bishop; and what the bishop and chapter ought to do together. The canonists limited both the bishop and chapter considerably in what they could do alone. Normally a bishop and chapter had to alienate property , to confer benefices and offices, to ordain priests and to judge cases in the episcopal court jointly. One canonist, Johannes Teutonicus, asked whether the consent of the parish priests was necessary in some cases, a question that may have still been asked by recalcitrant conservatives in the early thirteenth century. In the late twelfth century Huguccio and Laurentius thought that in some cases parish priests ought to be consulted by the bishop and chapter. Johannes and the later canonists were not, however, inclined to let the parish priests share in the governance of the diocese.

            One can detect attitudes about the proper governance of the universitas in a letter from late in the pontificate of Innocent III. The bishop of Vic, Guillem, ruled over a difficult and contentious cathedral chapter. While on a visit to Rome he must have complained to the pope about his canons and pleaded for papal intercession to support episcopal authority. Innocent issued a decretal letter to the bishop in which he laid down the general rule that reasonable enactments of the cathedral chapter should not be thwarted by a few canons. He mandated that when the bishop and the “potior et sanior” members of chapter ordained something that unless the smaller part of the chapter’s objections were supported by reason, the will of the bishop and chapter should prevail. Innocent concluded that if the canons refused to come to the chapter’s meeting or if they left during disputes that their absence could not be considered grounds for appealing the decisions of the bishop and maior et sanior pars of the chapter. Since the beginning of the twelfth century jurists and popes had used the phrase “maior et sanior pars” to describe the members of a monastic community or of a cathedral chapter who had the legal right to rule and to consent to measures established by the universitas (corporation) with the abbot or the bishop. As we will see below, the same terminology began to be used to describe a majority of electors when secular corporations chose their rectors. These principles of reason and of majority became cornerstones of the jurists’ political thought in the microcosm and the macrocosm.

            If the participation of the entire clergy in the governance of the diocese represented the old world, we can discern a tension in canonistic electoral theory between the rights of the local cathedral chapter and its corporate prerogatives and the expanding claims of papal power. Electoral theory is important for understanding the relationship of the person of the bishop and his territorial domain, his diocese. The bishop gradually became a stranger in a strange land during the thirteenth and fourteenth centuries. They were no longer native sons who were born in the local diocese; they were not even committed to a stable, monogamous marriage with their churches. We can see in the jurisprudence of thirteenth-century electoral theory a reflection of the old and new order of episcopal power.

            The key to the canonists views on election is their opinions on what constitutes a numerical majority in an election. The canonists adopted the term maior et sanior pars from the rules governing the governance of the universitas and used it to describe a majority of the electors in a corporation. The maior et sanior pars was not a numerical majority — although it could be — but was the most important part of the corporate body. Geoffrey Barraclough has written optimistically that “it is striking enough that the church had the wisdom to reject the democratic fallacy of ‘counting heads,’ and to attempt an estimate of the intelligence and enlightened good faith of the voters.” What may have seemed wise in the context of 1934 does not resonant as well today. Nonetheless, Barraclough’s generalization is off the mark for the Middle Ages because the church did not have the wisdom to reject fallacious democratic reasoning until the first half of the thirteenth century. The double papal election of 1159 had demonstrated to the canonists the dangers of rejecting democracy. In this case the papacy and the canonists quickly concluded that elections based on the principle of majority rule avoided schism and fostered stability. At the Third Lateran Council of 1179 a conciliar canon established the rule that a pope-elect must have the consent of a two-thirds majority in the college of cardinals.

            In the early thirteenth century Johannes Teutonicus propounded a theory of election that advocated a clear numerical majority in ecclesiastical elections. But Johannes was one of the last of the Old School. His theory was rejected by Bernardus Parmensis and, most importantly, by Pope Gregory IX, who stated in the decretal, Ecclesia vestra, that the maior et sanior pars must not always be a numerical majority. The most interesting aspect of Johannes’ electoral theory is his view on electing an “extraneus,” a foreigner, as bishop. As we have seen, until the twelfth and thirteenth centuries, most bishops were local men. Although Johannes was a fervent democrat in ecclesiastical elections, he was a committed oligarch when an ecclesiastical corporation wanted to elect an extraneus. Johannes may have been reacting to the increasing presence of foreign shepherds among local flocks. He believed that an extraneus could be elected only if there were no worthy candidates to be found locally, and only if the election were almost unanimous. Almost unanimous in this case means all but one. If the chapter elected an extraneus but two canons favored a local candidate, the two canons become the maior et sanior pars no matter how many canons voted for the other candidate.

            Johannes’ electoral theory reflects his conviction that foreign shepherds should not care for local flocks. He believed that an extraneus could be elected only with great difficulty, and he believed that even the pope could not provide a bishop to an unwilling flock. Johannes firmly rejected the constitutional structure of the church that was slowly evolving during his lifetime.

            Johannes Teutonicus was in a minority. All the later canonists agreed that the cathedral chapter could elect an extraneus if the bishop had been elected by the maior et sanior pars. Johannes, the old conservative, conceived of the church as being a local institution, serving local interests, and controlled by local people. In general his ecclesiology emphasized local rights. This idea that local rights were important remained an important element in the medieval Ius commune.

            Johannes’ jurisprudence of the norms governing the “universitas” were kept alive in the secular sphere if not the ecclesiastical, especially in the governments and guilds of the Italian cities. By the later Middle Ages the church was moving steadily towards centralization. The person of the bishop became a prince who ruled over his territory. His territory was more clearly defined than it had ever been, and his jurisdiction over institutions within his territory was more vigorously defined than it had ever been. The bishop, however, became less a creature of the diocese. The bonds between a bishop and his flock were attenuated and the legal relationship between them diminished. By the later Middle Ages, when bishops were generally appointed by papal mandates rather than elected by local cathedral chapters, the metaphors that had traditionally described the bonus pastor often became more and more rhetorical embellishments rather than descriptions of reality. The diocese and the bishopric were the forerunners of the modern state. Bishops, like secular princes, exercised increasingly centralized jurisdiction over their territories. What happened within the structure of the Church was replicated in the Italian city states where despotism in one form or another replaced communal, corporate rule.

            In ancient Roman law a “universitas” was an association of persons in both public and private law. The jurists used the terminology of Roman law to describe medieval corporations but expanded the scope and importance of corporate theory in law. Already in the twelfth century an anonymous jurist called the “people” a “universitas.” Although the norms governing corporate governance were established by the jurists of the Ius commune, these norms were modified by local custom and practice. From their thorough analyses of corporate law, the jurists created a doctrine of community. In particular they defined the relationship of the head of the corporation to the members. What was particularly significant was that corporate theory began as a juridical description of small groups but became a tool that the jurists used to describe the secular state and the entire church. As Brian Tierney has put it:

The decretalists themselves, down to Innocent IV, certainly had no intention of providing arguments for critics of papal sovereignty; but in fact a more detailed analysis of the structure of corporate groups was precisely what was necessary to provide a sounder juristic basis for the rather vague “constitutional” ideas that occur in decretist works.

Consequently, for a complete understanding of the political thought of the medieval jurists one must delve into their corporate theory of representation.

            The bishop’s position in the “universitas” could be seen from two perspectives. He could be seen as the sole ruler of the cathedral chapter and the diocese. He could also be seen as a ruler who shared his authority with the canons of his chapter. In the early twelfth century Gratian had put some texts into his Decretum that stipulated that a bishop must govern with the consent of his chapter. In later canonical collections there were two titles that touched directly upon the relationship of the bishop and his chapter: “Concerning those things which a prelate may do without the consent of his chapter” and “Concerning those things which a greater part of the chapter may do.” A number of papal decretals under these two titles established the norms by which cathedral chapters should be governed. The bishop could not alienate ecclesiastical property, he could not unilaterally grant clerics benefices and stipends, he could not make any important decision without the advice and consent of his chapter. After reading these papal decretals no canonist could have possibly concluded that a bishop could act alone without his chapter in all matters.

            A much more authoritarian bishop was attractive for a few canonists. Pope Innocent IV (1243-1254) was a distinguished canonist. He rejected the model of corporate governance supported by most canonists.

Rectors who govern corporations have jurisdiction and not the corporations. Some say that a corporation may exercise jurisdiction without rectors. I do not believe it.

Innocent put forward a simple, absolutist theory of corporate government that may have been influenced by Roman law. The Roman jurists did not have a sophisticated theory of corporations. The model of rulership that emerges in the texts of Roman law is that the people bestow authority on the prince but do share in his rule.

            When the canonists described corporate governance within the Church they developed much a more complex model of governance. The question of authority arose most often when ecclesiastical property and stipends were at issue or when the corporation was involved in litigation. The jurists created rules that dictated when a rector and the members of a corporation should act together or when they could or should act separately. They constructed a model of rulership in which sometimes the rector would sit in the corporation and act with the members and when the rector would act independently. Hostiensis, for example, argued that when the bishop sat in his chapter as a canon his vote was equal to that of any other member of the chapter. If, however, the chapter was negligent, then the bishops could exercise all the rights of the chapter alone. If the bishop acted in matters that touched his prerogatives, his vote was equal to all the members of the chapter. In this case, the bishop could make decisions with the vote of one other canon. The bishop and one other canon constituted the “maior et sanior pars.” Hostiensis was careful to protect the rights of the church against negligent prelates and canons. When the “status ecclesiae” (state of the church) was at stake, that is fundamental rights and duties that touched the well-being and prerogatives of the entire local church (universitas) the bishop must have the consent of the maior et sanior pars of the entire chapter.

            Medieval political thought was influenced in two ways by the jurists’ theory of corporations. The jurists described the complicated relationship between the prince and his subjects in the macrocosm with the same rules that they applied to the microcosm. These ideas about the proper relationship of the bishop to his chapter, the pope and his curia, the prince and his court, and, ultimately, the prince in his representative assembly (council or parliament) became fundamental norms for a just and proper doctrine of rulership.

            The juridical personality of the group quite naturally became a concern of the jurists. During the late twelfth and early thirteenth century the jurists began to realize that the corporation could be represented by a delegate that they named a procurator, syndicus, or advocatus. This delegated official could defend the interests of the universitas in court. His actions, the jurists decided, would be binding on the members of the universitas. The delegate possessed “plena potestas” or “generalis et libera administratio.” With the proper mandates the official could sell, buy, lease, make contracts as well as representing the interests of the universitas in court. The jurists placed two significant limitations on the exercise of his authority. He could not exceed the terms of his mandate and could not injure the rights of the universitas.

            The jurisprudence of representation and its bedfellow consent entered European society larger part of ecclesiastical governance in the early thirteenth century. When Pope Innocent III convened the Fourth Lateran Council he instructed bishops to inform members of their chapters to “send good men to the council.”       After having been summoned to the Fourth Lateran Council, chapters were not shy about asserting their new rights to participate in councils. They quickly claimed the right to be represented by procurators and through these representatives to be voting members of local synods.