Published in Rethinking the State in the Age of Globalisation: Catholic Thought and Contemporary Political Theory, ed. Heinz-Gerhard Justenhoven and James Turner (Politik: Forschung und Wissenschaft, 10; Münster: LIT Verlag, 2003) 117-141 and in Roman Law as Formative of Modern Legal Systems: Studies in Honour of Wiesław Litewski. Edd. J. Sondel, J. Reszczyński, and P. Ściślicki. (2 Volumes. Kraków: Jagiellonian University Press, 2003) 2.25-36
Sovereignty and Rights in Medieval and Early Modern
Jurisprudence: Law and Norms without a State
Catholic University of America,
Beginning in the eleventh century, European legal systems made the slow transition from customary,x-large ly unwritten, law to legal systems in which law was incorporated into the written word. During this period, laws and customs were not only written down, but jurists began to comment on them systematically. The result was that Europe experienced a remarkable rebirth of jurisprudence after 500 years of being a land without jurists. The main institutional basis of this revival was the teaching of ancient Roman law, and afterwards, canon law, in the schools of Italy.
The first center of legal studies was Bologna. Pepo, Irnerius, and others begin to explicate the Emperor Justinian’s (535-565 A.D.) sixth-century compilation of Roman law, the Corpus iuris civilis, significant parts of which had lain dormant and unused during the intervening five centuries. Justinian’s Corpus iuris civilis became the libri legales, the textbooks that new schools of law used during the twelfth century. These libri legales became the cornerstones of a new jurisprudence.
A shadowy figure named Gratian compiled a liber legalis for ecclesiastical law at the beginning of the twelfth century. Although the full story is not yet completely known, Gratian began to compile his book in the early twelfth century, perhaps as early as 1120, and by 1140-1160, his book was being used as the fundamental compilation of canon law all over Europe. By the first decades of thirteenth century, Gratian’s book was supplemented by a x-large number of books that collected papal case law, the decretals. Papal case law provided a rich and varied set of problems that the jurists explored in their commentaries and in the classroom.
As a consequence of the establishment of authoritative libri legales, law became an academic and intellectual discipline in a very short time. Student demand was great. Knowledge of law became economic coin. Law schools began to pullulate in Italy, Southern France, and Spain during the twelfth and thirteenth centuries. The curriculum was exactly the same everywhere: Justinian’s Corpus iuris civilis and Gratian’s Concordia discordantium canonum, or, as it was more commonly called, the Decretum, with papal decretals. As the study of law became entrenched in the schools of Europe, students began to study and to receive degrees in both laws: They became ‘Doctores utriusque iuris.’
The jurists called the body of law that they studied, Roman and canon law, the Ius commune. It became the universal law of Europe from the early twelfth to the seventeenth century. During the reign of the Ius commune, teachers in the law schools throughout Europe not only used the same libri legales in their classrooms; they also used the same language of instruction: Latin. This lingua franca guaranteed that the focus of the law was universal and not particular. Liberated from the linguistic borders that limit intellectual horizons today, medieval students could attend any law school in Europe. One consequence of the schools’ curriculum was that they did not teach local customary or statutory law. And although the schools were regulated by the Church in the early centuries, they werex-large ly independent of the authority of the local prince.
The institutional structure of the law schools had profound effects on law. Unlike today, the schools and the jurists who taught in them were not isolated geographically and jurisdictionally from each other. Although the law schools in Southern Europe were much more important and played a muchx-large r role than the Northern schools during the twelfth and thirteenth centuries, the libri legales created a homogeneous curriculum that formed the foundation of every jurist’s training. The jurists of the North read and taught the jurists of the South. The jurists of the South, especially those from the Iberian peninsula, Southern and Central France, and Italy produced an astounding amount of literature in several different genres. The result of this work was the development of a common European jurisprudence that emerged during the thirteenth century.
This jurisprudence transcended local law, the Ius proprium. From the late twelfth-century on, the jurists of the Ius commune developed a jurisprudence in which they attempted to isolate norms that had general application. Brian Tierney has recently demonstrated that these jurists explored rights of individuals systematically and developed a new language in which rights of human beings were discussed from many different perspectives. In their commentaries and their teaching they created jurisprudential norms that protected those rights. As these jurisprudential norms were received in the classrooms, courts, and commentaries, they became more than legal maxims or legal rules: they became statements of equity and justice that ruled the world of thought and the world of the courts.
Today the sovereignty of the state protects the rights of citizens. In the era of the Ius commune, the rights of subjects were not, for the most part, protected by local customary law or statutory law. Today individual rights are embedded in legislation, court decisions, and the constitutions of sovereign states. In the world of the Ius commune, the rights of subjects can be found in the writings of the jurists whose intricate arguments were conducted over centuries. In their thought they constructed these rights primarily by limiting the sovereignty of the prince. As consensus evolved among the jurists, sometimes over centuries, about which rights were universal and which were not, the results became a part of the literature of the Ius commune. Consequently, during the Middle Ages and well into the early modern period, the jurisprudence of the Ius commune functioned as a constitution in which individual rights were detailed, explained, recognized, and asserted by generation after generation of jurists.
The “constitution” that the jurists fashioned was not limited by political and legal boundaries. Since the law schools in which the Ius commune was taught, studied, and interpreted were not a part of any territorial state and were not linked to any local legal system, it was a legal system without a state, an idea that is almost inconceivable in the world of the modern state system.
One of the main contributions of medieval and early modern Catholic jurisprudence (the Ius commune) was the establishment of individual rights as the foundation of its thinking about sovereignty. As Tierney’s work has shown, a clear doctrine of individual and inalienable rights first surfaced in Western legal thought in the twelfth and thirteenth centuries. Political systems were not democratic, politics were not liberal, but jurists had a common set of norms to which they gave their consent. These norms were the building blocks upon which they constructed rights of property, obligations, marriage, defense, and due process. Today these rights are often protected against arbitrary magistrates of the sovereign state by constitutions. However, although constitutions may function as higher norms, their provisions can be changed, or, as we have seen in the late twentieth century, the political societies that had created them may disappear. In any case, the rights they protect cannot be considered eternal or inalienable.
In the bleak and sorry history of the twentieth century, individual rights and the sovereignty of the nation state have waged almost constant war against each other. Today they continue to do battle. Since the Convention for the Protection of Human Rights and Freedoms was adopted by sixteen European countries on November 4, 1950, human rights have been endorsed by heads of government, ratified by treaties, and violated by almost everyone. The culprit is the modern sovereign state, which recognizes the right of its citizens to act contrary to its will and its self-interest only with excruciating difficulty. The norms of the Ius commune created a much more stalwart defense of individual rights than we find in modern jurisprudence. The reason is that individual rights were embedded in a disinterested body of jurisprudence that was not susceptible to the argument that rights should be suspended because of “national interest or national self-preservation.”
Unlike the rights granted by modern states to their citizens, the conceptions of sovereignty held by jurists of the Ius commune protected the rights of individuals — in many cases absolutely. The origins of the right to due process is a splendid example. At the beginning of the thirteenth century, a defendant did not have the absolute right of due process. A judge or the prince could condemn a person without a trial. During the thirteenth century the jurists began to explore and debate the rights of defendants. By the end of the century they had reached a consensus that a defendant’s right to a trial was grounded in natural law and, consequently, was inviolable. The most sophisticated and complete summing up of juristic thinking about the rights of defendants in the late thirteenth and early fourteenth centuries can be found in the work of a French canonist, Johannes Monachus who died in 1313. While glossing a decretal of Pope Boniface VIII (Rem non novam) he commented extensively on defendants’ rights. He began by asking the question: could the pope, on the basis of this decretal, proceed against a person if he had not cited him? Johannes concluded that the pope was only above positive law, not natural law. Since a summons had been established by natural law, the pope could not omit it. He argued that no judge, even the pope, could come to a just decision unless the defendant was present in court. When a crime is notorious, the judge may proceed in a summary fashion in some parts of the process, but the summons and judgment must be observed. He argued that a summons to court (citatio) and a judgment (sententia) were integral parts of the judicial process because Genesis 3.12 proved that both were necessary. God had been bound to summon Adam; human judges must do the same. Then he formulated an expression of a defendant’s right to a trial and to due process with the following words: a person is presumed innocent until proven guilty (item quilbet presumitur innocens nisi probetur nocens).
This sentence of Johannes Monachus has a delicious irony for anyone who has studied and read the literature on due process in English and American common law: rather than a sturdy, virtuous Anglo-Saxon, a cardinal of the Roman church, a Frenchman, a canonist, Johannes Monachus was the first European jurist to recognize the inexorable logic of God's judgment of Adam: God could not condemn Adam without a trial because even God must presume that Adam was innocent until proven guilty. The Old Testament provided yet another source from which jurists derived their norms.
After Johannes, other canonists played with the idea of defendants’ rights. They coined a proverb that God must even give the devil his day in court. Johannes' commentary on Rem non novam eventually became the Ordinary Gloss of a late medieval collection of canon law known as the Extravagantes communes. This collection and its gloss circulated in hundreds of manuscripts and scores of printed editions until the seventeenth century. Since his gloss was read by the jurists of the Ius commune until the eighteenth century, it was a primary vehicle for transmitting the principle of due process to later generations of jurists.
In the jurisprudence of the Ius commune, the maxim, “Innocent until proven guilty” summarized a bundle of rights that every human being should have, no matter what the person’s status, religion, or citizenship. The maxim protected defendants from being coerced to give testimony and to incriminate themselves. It granted them the absolute right to be summoned, to have their case heard in an open court, to have legal counsel, to have their sentence pronounced publically, and to present evidence in their defense. A jurist of the Ius commune would be puzzled that today we can embrace the maxim “a person is innocent until proven guilty” and still deny human beings a judicial hearing under certain circumstances. For them the maxim meant “no one, absolutely no one, can be denied a trial under any circumstances.” And that everyone, absolutely everyone, had the right to conduct a vigorous, thorough defense.
This tradition of thinking about rights survived into the early modern period. Since the recent work of Brian Tierney, we know that the sixteenth and seventeenth centuries were crucial for the development of a tradition of rights thinking in the European tradition. The most important event that challenged the jurists to continue thinking about individual rights was the discovery of the New World and new peoples in the sixteenth century. If a number of Spanish thinkers had not been confronted by this new set of problems, rights could have withered on the vine.
Certainly the sixteenth and seventeenth centuries were not great ages for human freedom in other areas. The doctrine of absolutism became acceptable coin of public political discourse, religious intolerance reached abysmal depths never before seen, censorship became a tool of European secular and religious regimes to control thought, witches were discovered in every crack and crevice, puritanism became the first and most important virtue that was added to the other seven: this list could be extended almost endlessly. Yet the discovery of lands populated with pagan peoples sparked a debate about their rights. Some of the best minds of the sixteenth century asked hard questions: Could native peoples have a just title to their lands? Could their lands be taken from them? Could they be enslaved? Francisco de Vitoria, Bartolomé de Las Casas, Francisco Suárez, and Hugo Grotius exploited the earlier traditions that they found in theology and in the Ius commune. They preserved the concept of rights in an age in which authoritarian power seems to have pride of place. Most of you know that these theologians and jurists defended the rights of indigenous peoples against the depredations of the sovereign state — their state. They used the norms of the Ius commune to argue for those rights. In the end the law failed indigenous native American peoples. Only recently have we begun to recognize, belatedly, the justice of these Spaniards’ arguments.
The thought of a less well-known seventeenth-century Spanish jurist, Emanuel Gonzalez Tellez, demonstrates how deeply embedded “rights thinking” was in the minds of the jurists of the Ius commune. His work also illustrates how European jurisprudence still exercised power and authority over the minds of jurists in every corner of Europe at a time when the nation state had already sounded Ius commune’s death knell. Tellez is a splendid example of the continuity of the Catholic legal tradition and its defense of individual rights against the sovereign power of the state. Tellez’ major work was a long, detailed commentary on the Decretals of Gregory IX, a great law book of the thirteenth century. As far as I can tell, Tellez’ commentary on the Decretals was one of the last massive canonistic commentaries to enjoy European wide distribution. He taught at Salamanca and died in 1649.
I would like to begin my discussion of Tellez at an unlikely spot to talk about natural rights: in the title devoted to the translation of bishops in book one of the Decretals of Gregory IX. This title contains four decretals of Pope Innocent III dating from 1198 to 1200 in which the pope suppressed forever the rights of local churches to translate bishops without papal approval. Innocent declared in Quanto personam, the most important decretal in this title, that he claimed this power and authority over bishops because “he does not exercise the office of man, but of the true God on earth.”
This is a strange cupboard for a canonist to look for rights. Tellez, however, began his commentary by asserting that Quanto personam led to the following conclusion: “A bishop who transfers himself on his own authority from one church to another loses both offices” and listed a long series of authorities who supported this statement. Then he proposed the contrary:
Truly the present decision is contrary to ius and natural liberty and cannot be held. For a disposition of ius that infringes upon natural liberty cannot be admitted. The present disposition infringes upon natural liberty and cannot be sustained. First we may prove the minor thesis: a disposition that anyone may not leave a certain place or a certain city infringes upon natural liberty.
Tellez cited a passage from the Justinian’s Roman law Digest in which Tryphonius (Sabinus) argued that everyone had the right (libera facultas) to choose his own city and Cicero that it is a foundation of liberty that no one may be forced to stay in a city unwillingly. His last citation was to Hugo Grotius’ De iure belli ac pacis libri tres. Grotius had argued that although there were exceptions to the general rule, a person might leave his state. Although he cited the same passages from the Digest and Cicero, Grotius did not base his argument on a natural right to immigrate but on a concept of the common good. Tellez probably borrowed the citations from Grotius, but the Spaniard emphasized the absolute right of a person to move freely. Where Grotius saw a right that was circumscribed by the duties of persons to support the existence and well-being of the state, Tellez saw individual rights based on natural law.
Even more importantly for the argument of this paper is the fact that Tellez knew and had read Grotius’ great treatise De iure belli. Grotius published his essay in 1625. We have known for a long time that the Dutch jurist read and cited contemporary Spanish, Italian, French, English, German and Dutch jurists and had also cited a remarkable number of jurists who had written their works from the twelfth to the sixteenth century. Even a casual reading of De iure belli will convince any reader that Grotius was influenced by, borrowed from, and contributed to the jurisprudence of the Ius commune. His Protestant religious convictions did not exclude the ideas of Catholic jurists. Renowned Spanish jurists and theologians like Franciscus de Vitoria and Franciscus Suarez, together with much more obscure figures like Rodericus Suarez and Balthazar de Ayala, dot the margins and inhabit the footnotes of his texts. These men inspired his thought and justified his convictions. Grotius may have been Protestant but in law he was catholic. In this respect, however, Grotius was not unusual. All the jurists of the Ius commune participated in a legal system without borders.
Conversely Tellez must have read Grotius within a decade or two after the publication of De iure belli. The Ius commune was a pan-European legal system, and its literature was universal. There were Three reasons why. The first is language. From the twelfth to the seventeenth century, the language of the classrooms, the language of the standard texts, and the language of the literature that explicated the texts was Latin. The linguistic barriers between jurists that isolate them from one another today did not exist then. The second is the curriculum of the schools. Since the end of the twelfth century, the libri legales used in the law schools were the same all over Europe. Every student, whether in Oxford or Bologna, Salamanca or Prague, read the same texts. Professors taught those texts and read the same specialized literature. A Grotius was not separated from a Tellez by language, terminology, and intellectual background — or by religious belief. The third reason is the invention of printing that allowed the works of these jurists to reach the far corners of Europe. The result was a common set of presuppositions and an intellectual tradition that was not tainted by the parochial idiosyncrasies of local customs. In particular their thinking was not limited by the norms of local custom.
Let us return, however, to Tellez and his argument that people had the natural right to move from place to place. In the end, he did not uphold the position that the bishop could move without papal authority. His ultimate conclusion conceded that since a bishop was married to his church this marriage bond took precedence over his natural liberty to move. He noted that even though Robert Bellarmine and others had criticized translations in the modern church, they were still lawful. Even though Tellez’ argumentation was a part of a dialectic that did not carry the day, the point remains that by the seventeenth century jurists had been sensitized to the issues of the natural rights of human beings. Tellez conceded that bishops could not move without papal permission, but it is clear from his argument that he assumed that every other human being could move from place to place. Freedom to travel without interference was a basic human right, and the state could not violate those rights. It is not by chance that it was Tellez in the sixteenth century and not another earlier canonist who raised the problem of rights while commenting on Quanto personam. Jurists saw issues of rights in the seventeenth century in places where they had never noticed them before. Even Grotius, who was as attuned to the rights of individuals as any jurist of the Ius commune, did not grant persons the natural right and liberty of immigration.
The modern state has restricted the rights of its subjects and others to move from place to place for the common good. Since the middle of the nineteenth century it has decided that its borders were sacrosanct and that it had the authority to infringe upon the natural liberty of people to move from one state to another. Tellez would have been puzzled. He thought that the right to immigrate was a natural right that had been recognized since Roman times. It was a norm of the Ius commune.
Another area of rights illustrates Tellez’ attitudes: the right to bear arms. At the end of the eleventh century the church had moved broadly to forbid clerics from carrying arms. A canon from the Council of Poitiers in 1079 banning clergy from bearing arms became part of the normative law of the church by the late twelfth century. But, from the beginning, the absolute interdiction of clerical arms was tempered by the canonists’ notions of rights. They immediately interpreted the canon as excepting a cleric’s right to self-defense. Between the thirteenth and the seventeenth centuries, the jurists distinguished between offensive and defensive weapons, dangerous and safe places, and a cleric’s and a layman’s right to defend himself. Tellez makes the old points. “Natural reason permits us to defend ourselves from danger . . . whence this ius, that one may repel arms with arms, is said to have been established from nature. However, Tellez expands the scope of a cleric’s rights to bear arms considerably. “No one should doubt,” he wrote, “that in case of necessity clerics can defend themselves from force and also defend their homeland.” “If a city is attacked by enemies, a cleric may take up arms for reasons of defense.” To this point Tellez endorses a cleric’s right to bear arms that is congruent with the thought of other jurists during the sixteenth and seventeenth centuries.
What sets Tellez apart from his predecessors is the last part of his commentary. Here he turned, naturally, it seems, to the rights laymen to bear arms. His point of departure is a statute in the Justinian’s Code of Roman statutes that forbade any Roman from bearing arms without the permission of the emperor. Tellez observes that a x-large number of jurists from Bartolus to Socinus understood this text as banning citizens from bearing arms. The great proceduralist of the late sixteenth and early seventeenth century, Prospero Farinacci, concluded that those who bore arms in public became liable to a “mala praesumptio.” Tellez wrote a long essay on the historical origins of the Roman statute and concluded that it was not a general prohibition from bearing arms. Consequently, Bartolus and others did not understand the text correctly. For just and honest reasons, private citizens may bear arms. I would like to think that Tellez might have changed his mind if faced with 250 million handguns in the US, but I also think that this discussion illustrates how he saw issues of rights to which earlier generations of jurists were oblivious. Most importantly he firmly believed, as all of his predecessors had believed, that the sovereign state could not abrogate or derogate rights that were protected by higher norms. These norms transcended the positive law of the state.
The language of rights, based on the jurisprudential norms of the Ius commune, permeates Tellez’ commentary. In his commentary on the Fourth Lateran canon prohibiting Christians from selling arms to Moslems, Tellez again raises the issue of rights. How could the Church, he asked, forbid Christians to buy or sell goods when contracts of sale and purchase are part of the natural law? Furthermore, since the Fourth Lateran canon decreed those Christians who commanded ships in the Moslem fleets could be enslaved if they were captured by Christians, Tellez pointed out that since liberty is a natural ius, positive law could not derogate natural law. As in his discussion of episcopal translations, Tellez raises objections to the Lateran decree based on natural law and natural rights but in the end concedes that the church or the secular prince can restrict these rights. The selling of arms to enemies and the enslavement of freemen can, under certain circumstances, be tolerated. What is important for our purposes is the language of rights with which he framed his contrarietates. But as in his commentary on the right of clerics to bear arms, here too he steps beyond his text to discuss the right of the prince to ban commerce. Princes may forbid their subjects to engage in commerce under certain conditions, but hey may not ban commerce absolutely. The language of his conclusions is worth quoting:
For although contracts of sale and purchase are part of the ius gentium, and although princes may not prohibit their subjects absolutely, they can prohibit similar commerce with just cause for some people or of some things, because such a prohibition is supported by a more powerful natural reason, as Albericus Gentilis has noted. The ius of commerce is a ius founded on equity (ius aequum is untranslatable but has a rich resonance in the jurisprudence of the Ius commune) and defending safety is accomplished more justly with equity. The law of commerce is just but (the law) of preserving safety is more just. The former is based on the law of nations, the latter on that of nature. The former is the concern of private persons, the latter of kingdoms. So commerce yields to the kingdom, man to nature, money to life.
I cannot leave Tellez without looking at a place where one would expect to find the language of rights in full regalia: the chapter on theft in the Decretals of Gregory IX upon which the canonists, beginning in the twelfth century, had built a fortress defending the rights of the poor. Tierney first wrote about this chapter in Medieval Poor Law. He returned to it again in The Idea of Natural Rights. This text and others in the Decretum spawned what Tierney describes as a “rightful power” or a “rightful claim” of the poor to the goods of society and is a prickly piece of evidence that even the most skeptical critics must choke on if they wish to deny that the medieval jurists did not have any conception of a natural right. What did Tellez add to five centuries of commentary on this text? For the most part, he repeated the standard interpretations: Theft of food or clothing when driven by the necessity of hunger or nudity was not a crime or a sin. Not even a penance could be imposed on a person. The common principle was, Necessity made licit what otherwise was illicit. Necessity makes all property common. According to natural law, all property is held in common; natural law cannot be derogated in times of necessity under any circumstances. Tellez could have written the same words if he had lived in the thirteenth century. Only at the end of his commentary did he depart from the standard commentary. Could a starving person eat food that had been sacrificed to idols? A text in Gratian’s Decretum seems to forbid it. Tellez concludes:
Nevertheless the urgent necessity of hunger permits them to eat it. The command to preserve life is a part of natural law (here one may argue whether we should translate this passage as “natural law” or “natural right”) and the prohibition is only a part of positive law. When two precepts conflict, one of natural law and one of positive law, natural law always prevails.
However, if a Christian were forced to eat as a part of the cult’s liturgy, then Tellez agreed with Vitoria: the person should rather die than eat. The natural rights of human beings do have their limits.
The Ius commune of the sixteenth and seventeenth centuries is important for our world because it directly links our ideas and thinking about rights to the ideas of medieval and early modern jurists and theologians. The main conduit though which the concept of natural rights flowed was not another theologian, but the Dutch Protestant jurist, Hugo Grotius (1583-1645). In De jure belli, Grotius grappled with the meanings of right (ius) in all of its multifarious meanings. I was surprised that Grotius, who died four years before him, influenced Tellez. I should not have been. It demonstrates, once again, two of the central points in this paper: how open the intellectual world of jurisprudence still was in the seventeenth century and how pervasive the language of rights was in that world.
The three elements that were central to the jurisprudence of the Ius commune in its waning years were its norms, its concept of natural law and of natural rights. Tellez, Grotius, and the other jurists thought these norms often trumped the sovereignty of the state, except under certain circumstances when other, usually collective, rights trumped individual rights. The jurisprudence of the Ius commune was the Träger of individual rights. It protected the rights of individual across territorial and jurisdictional borders. It protected rights without the state.
Of equal importance, however, was the vehicle through which the Ius commune was created. From the twelfth century the law schools provided the crucial institutional context that nurtured the evolution of a humane jurisprudence. It is impossible to imagine that the Ius commune would have evolved if the schools had been linked to the law of a particular place, a territory, a principality, kingdom, or “state.” The common educational experience and the common language guaranteed that jurists were not isolated from one another. They conducted long, sophisticated discussions with their contemporaries and their predecessors in their teaching and their works. The result was a jurisprudence that protected the rights of persons as well as any legal system in the modern world and better than most.
A legal and an educational system that is independent of national, religious, and ethnic blinders would be difficult, perhaps impossible, to establish in our fragmented world. The model of the Ius commune, nonetheless, provides us with a rich realm of ideas and possibilities. It created a jurisprudence and a set of norms that was the product of centuries of debate in the classroom, in the pages of books, in the courtroom, and in the chambers of legislative authority. Recently I discovered that a famous voice from the past, Alessandro Manzoni, had partially made my main point several centuries ago. In the debate over the use of torture in criminal proceedings Manzoni had pointed out that Pietro Verri had overemphasized his contribution to the intellectual arguments that underpinned his condemnation of torture and de-emphasized the contribution of earlier jurists. As part of Manzoni's account of a Milanese cause célèbre in which the judges sent several innocent men to the rack with almost no evidence of their guilt, he demonstrated that Verri had seriously distorted the legal tradition when he emphasized the novelty and originality of his own thought:
From this evidence and from all we know of the practice of torture in their own time, one can undoubtedly conclude that the interpreters of criminal procedure left the theory and practice of torture much, but much, less barbarous than they found it. Of course it would be absurd to attribute this diminution of evil to one cause alone, but I think that among the many causes that it would be reasonable to count the repeated reproofs and warnings, renewed publicly, century after century, by jurists to whom it certainly can be granted a definite authority over the practice of the courts.
Manzoni had extraordinary insight into how the norms governing torture evolved in European jurisprudence. He understood the complicated dialectic through which jurists argued with, borrowed from, and added to the thought of their predecessors and, in their works, spoke across the centuries to their successors. He also understood that the thought of the jurists eventually penetrated into the rough and tumble of the courtroom.
Today Europe seeks a new Ius commune and a new constitution. The world seeks a jurisprudence that will protect the rights of all human beings much more effectively than the nation state has done over the past two centuries. Although the liberal, democratic state has made great progress since the eighteenth century there is not a single one that has not seriously and shamefully violated the rights of its citizens and its non-citizens in the name of self-preservation during the past fifty years. The necessities and dangers of the moment have almost always provided governments an excuse to infringe upon individual rights. If we take the Ius commune as a model for the modern world in which legal systems and human beings are held hostage to the needs of states, we might conclude that law is too precious a commodity to be left in the hands of bureaucrats, politicians, legislators, and, most importantly, those leaders who privilege the existence and prerogatives of their territorial states at the expense of their citizens.
In a recent column George F. Will, an American conservative political commentator, assured his readers that:
A proper constitution distributes power among legislative, executive and judicial institutions so that the will of the majority can be measured, expressed in policy and, for the protection of minorities, somewhat limited. A proper constitution does not give canonical status, as rights elevated beyond debate, to policy preferences of the moment.
Will’s certainty is wrapped in historical ignorance. The Framers of the American Constitution quickly realized that when they had “distributed power among legislative, executive and judicial” branches of government, they had omitted to limit the power of the government to oppress the American people. They tried to remedy their omission with the Bill of Rights. The list of rights that they included is a potpourri. Some spoke to the “policy preferences of the moment” and others expressed norms that had been entrenched in the law for centuries. As I demonstrated earlier the right of due process that was incorporated into the Fifth Amendment had a long history in the jurisprudence of the Ius commune. It is worth pondering that the right of due process has been systematically weakened rather than strengthened since its inclusion into the American Constitution. And at this moment (2003) it is under a sustained siege in the United States. The American war on terrorism has clearly demonstrated that political leaders, judges, jurists, and political commentators like Will feel free to strip defendants of their rights even if these rights are embedded in a Constitution. The Fifth Amendment states that “no person can be deprived of life, liberty, or property without due process of law.” The American Supreme Court has flouted the clear intent and language of the amendment by limiting the right of due process to American citizens. In its present war on terrorism the government has even stripped its citizens of that fundamental right.
George F. Will’s views on what is a “proper constitution” are not limited to his end of the political spectrum. Constitutional lawyers concentrate on “preferences of the moment” that the Framers of the American Constitution had chosen and ignore the rich jurisprudence that shaped those preferences. States have always and will always attempt to take away the rights of persons living within their boundaries. I would argue that a jurisprudence with roots sunk deeply in the long tradition of human experience and not limited by linguistic, political, cultural, and legal boundaries provides the best hope for a “proper constitution” that will respect the rights of all human beings.