IDEAS AND POLITICAL POWER
86 To emphasize the role of social movements and conflicts of powers and interests is not to misunderstand the influence of ideas, which are themselves historical facts. Even the best and the most just of ideas, however, can assert itself only when social forces are disposed to adopt it.
Without the political will, legal principle has little prospect of success. From the Middle Ages onwards, numerous projects for a supra-national order in Europe were drawn up, among others by brilliant scholars such as Leibniz. Up until the time of Boniface VIII, the papacy had been recognized as having interÂnational authority, above states and sovereigns, but this had come to an end at the time of the papal exile in Avignon and had completely disappeared by early modern times, when it was clear that ChrisÂtianity had become definitively divided. The new situation prompted lawyers and philosophers to make various attempts to create an international legal order, founded by the states themselves, to which national governments would be subordinate. This legal order would ensure internal peace and external security (especially against the Turks). Yet none of the projects came to fruition, and the sovereign states followed their own destinies. In the twentieth century this scene was replayed on the global scale. It is now clear that a world organization with effective power over all nations, including the super-powers, is an impossible dream; the best proof of that is the right of veto of the permanent members of the Security Council of the United Nations.Still, in legal history when an idea has actually managed to establish a central role for itself, it tends to be pushed to its most extreme logical consequences. Some legal concepts therefore end up virtually as obsessions. Here are two examples. The first is the rise of pontifical theocracy, which is certainly the most striking model of an ideology taken to extremes.
From the eleventh century onwards, this theory, which is alien to the original message of Christianity, developed and came to influence every aspect of the institutions of the church until the crisis of the fourteenth century. In turn, church practice and legislation decisively affected European legal systems, both in public and private law. A second example is provided by the aspirations of the monarchy to order and to structure society as a whole. This led to the absolutist state of early modern times. Here too an embryonic idea, that a monarch designated by God was destined to govern an entire society, was developed at all levels of social organization. In practice the idea was sometimes pursued to excess, and only later were the excesses moderated. Suffice it to mention torture in the criminal courts: it was the task of the sovereign to guarantee peace and so to repress crime. In order to ensure convictions, there was no hesitation in permitting witnesses to be examined secredy (already a restriction on the rights of the defence) and allowing confessions to be obtained under torture (which eliminates those rights entirely).
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