Civil Law and Canon Law: The Utrumque ius
There was an urgent problem underlying the common law: there were two highest laws, the canon and the civil, a duality expressed by the term utrumque ius, “the one and the other law.” Because both claimed to be the law common to the entire Christian world, the parameters of each one needed to be specified if they were to continue to coexist.
The ancient laws of Justinian had Iitde or nothing in common with the new constitutional structure of the Holy Roman Empire. The old magistracies had disappeared. The new magistracies, both central and peripheral, were different. All that was left—and it was intensely alive—was a central conceptual nucleus once incorporated into the constitutions of ancient Rome and now revived and reinterpreted in the figura of the Holy Roman Empire. This nucleus was the very idea of imperium. Imperium was different and distinct from dominium∖ moreover, it was a notion that permitted no neutral and intermediate areas such as the idea of seigniory.The laws of the church contained the same image of power but were directed to a different end. Whereas civil normative systems were conceived of and directed toward founding and guaranteeing the commonweal and the terrestrial existence of structures and persons, canon law was charged with creating the best conditions, in this world, for man to avoid losing his soul and to achieve salvation in the glory and beatitude of Heaven. At a certain point these two aims converged, but they tended to produce potentially conflicting results. Both regarded man in his terrestrial and juridical condition: for the empire, so that man, subjected to an auctoritas, might realize the common good in freedom and responsible autonomy; for the church, so that he might avoid the temptation of sin and enjoy the soul’s salvation for all eternity.
In principle the basic distinction was and remained the ancient and highly lucid one that Pope Gelasius I had affirmed in 494: there were two dignitates that reigned over the world, the auctoritas sacrata Pontificum (sacred authority of the popes) and the regalis potestas (royal power).
The first was constituted pro aeterna vita (for eternal life), the second pro temporalium cursu rerum (for the duration of the secular world).[71] Accursius expressed the same idea in juridical terms in a schematic and theoretical representation: ccNec papa in temporalibus nec imperator in spiritualibus se debeant immiscere” (Neither the pope in secular matters nor the emperor in spiritual matters has any authority),[72] thus reserving to the Roman pontiff dominion over the human spirit and to the emperor dominion over politics and the course of earthly events.The problem was that, in fact, and in the administration of the two separate powers, the popes tended to occupy themselves with terrestrial affairs precisely because many of these offered opportunities for sinning. For example, although mortgage contracts and rental contracts were undeniably terrestrial matters, and hence belonged within the emperor’s sphere, it was nonetheless true that the payment of interest (a usura∖ usury) might be requested of the borrower or imposed on him. Because anyone who asked for or demanded interest sinned (since usury was prohibited for religious reasons), the pope had, or arrogated to himself, the power to intervene even in terrestrial affairs to dictate a measure that would serve to close off all roads to sin.
This is why Odofredus could write, with an incisiveness that tempered an irreverent and sarcastic tone, ccDominus papa ratione peccati intromittit se de omnibus” (The lord pope intervenes in all matters by reason of sin).[73] Several decades later, in the early fourteenth century, Cinus of Pistoia was equally decisive: ccEcdesia sibi usurpavit ratione peccati totam iurisdictionem” (The church usurps to itself all jurisdiction by reason of sin).[74] Many popes came in for repeated and sharp criticism of their acts and their legislative initiatives when they meddled in all areas of the law with the argument and the excuse of avoidance of sins.
It is certain that this occurred. If we turn to the LiberExtra of Gregory IX, promulgated in 1234, we have direct proof of the church’s overstepping the line: in the field of criminal law, because the church claimed jurisdiction in such illicit acts as adultery and rape (X.4.7; X.5.16), bigamy (X.1.21), calumny (X.5.2), injurious libel (X.5.36), false witness (X.5.2o), physical violence (X.5.36), and even homicide (X.5.12) and theft (X.5.18); in the field of private law, because there were legal institutions that the church considered particularly dangerous for the soul (because particularly conducive to sin) such as commodatum, or the free loan of chattels (X.3.15), deposit of funds (X.3.16), buying and selling (X.3.17), loans and usurae (usury; X.5.19), lending on gages and other securities (X.3.21), and donations (X.3.24). Still in the field of private law, because the family, which fell under private law, was the ideal community for the moral and religious education of the individual, in the image of the Holy Family (Joseph, Mary, and the Infant Jesus), the church felt that certain structures such as consanguinity, kinship, and affinity (X.4.14) required regulation, as did some family-related activities. Hence the church not only felt justified in prohibiting adultery, bigamy, marriage between close relatives, and divorce (X.4.19), but also in fixing the time (X.4.2) and the forms of marriage rites, providing a specific regime governing the wealth of offspring who entered the clergy (X.3.25), and regulating donations between a father and his children and between husband and wife (X.4.2o).
As is obvious, there was a wide spectrum of activities and norms within canon law that occupied spaces typical of legal institutions already regulated by Roman and Justinian law. But if superimposed areas Ofjurisdiction created many practical problems, they also helped to solve some. The rigidity of a discipline more than seven centuries old gave support to the church’s laws, lending them basic, concrete legal concepts; at the same time, that rigidity was corrected, tempered, and bent to contain new norms marked by the supreme authority of the church, which served to make that authority coherent with the fluid events of extraordinarily creative centuries.