Ius commune and Ius proprium as One System: Sovereignty
Another thread connected the ius proprium and the ius commune. We can discern it by examining society—each particular society—to analyze institutional trends within it, seeking to understand how these trends were solidified and perpetuated by having the stable forms of a legal structure—an adequate network of laws—shaped to them and applied to them.
Thus, if a distinction emerges between what was typical of a society per se, considered as an entity, and what was the part of the private subjects who made up that society, we can distinguish between imperium and dominium, between public power and individual property, between the voluntas principis (will of the prince) that gave society its law and the will of the private individual forging his own laws by juridical negotiation.It is undeniable that in the extraordinary multiplicity of particular social orders the problems central to all forms of social cohabitation were resolved in multiple ways. The fact remains, however, that those problems arose everywhere, and, while they stimulated and nourished legal thought, they drew from it a paradigm for their own organization.
In the legal thought of those centuries the chief paradigm and the supreme model was dual: both the Holy Roman Empire and the church were universal orders with enormous power inherent in their heads, the emperor and the pope. As is known, earlier (twelfth century) emperors and popes needed to know and jurists wanted to establish the nature and limits of the iura reservata principi (rights reserved to the prince), or regaliae, and whether the emperor’s or the pope’s dominium over the things of this world was property ownership (dominium quo ad proprietatem-, right of property) or governing power (dominium quo ad Iurisdictionem Ctprotectionem-, right of jurisdiction and protection). It is clear that the way these complex problems were approached reflected the difficulties that feudal circles experienced in understanding them: they found it difficult to grasp the meaning of the term dominium? and they had good reason to balk at conceiving of a public dimension of power and to try to bend public powers to fit the patterns of private law.
It is just as clear, however,8. Ibid., 254-55, 232-34.
that there were pressing reasons on the side of those who were intent on “uprooting the concept of state from feudal terrain.”[145] When the latter convictions prevailed, and when the components of the superior model were set (for instance, by lists of the regaliae pertaining to the secular or ecclesiastical ruler), an integral and profound change took place in political structures. Even if seigniory (feudal, territorial, or landowning) continued to be the rule in large areas in Europe, it nevertheless had to compete with free cities and great institutionalized aggregations (counties, duchies, principalities, kingdoms—regno) that were beginning to lose their original feudal characteristics and to take on the new attributes of sovereignty. From this point of view, the history of the Kingdom of Sicily is exemplary. It was a fief of the church, but it was also an independent and sovereign kingdom.[146]
Thus the characteristics of the imperial powers were reproduced in innumerable smaller entities. More and more, the jurists quoted the lapidary formula, “Rex in regno suo est imperator” (A king is emperor in his own kingdom); they embellished it with the added attributes of exclusivity and independence: “Rex superiorem non recognoscens in regno suo est imperator” (A king recognizing no superior is emperor in his own kingdom);[147] and they applied this notion to the powers of government of particular political orders. These in turn were revitalized by use of this same notion, clarified by theory, with the result that any head or lord of an institutionalized community had public powers modeled on those of the supreme head, the emperor, and differing from the emperor’s only in their more limited scope.[148]
In short, the jurists competed with one another to define a political and institutional reality and bring it to the attention of their contemporaries, to the point that the same theory of power was taken over by feudalism and became the theoretical basis of seigniorial power as expressed, particularly in France and southern Italy, in the formula, “Baro in sua baronia est imperator” (A baron is emperor in his barony).
This motto inverted the basic principles of feudal civilization, twisting them by transplanting the political and ideal dimension of the emperor’s public power to a feudal terrain that never could have invented it, let alone accepted and practiced it. This opened the way for the formation or the strengthening of the great institutionalized political concentrations, which gave rise, in the fifteenth to the eighteenth centuries, to such regional and multiregional states as the principalities of Italy and elsewhere and to national states such as France and Spain.None of all this would be comprehensible or could have occurred if the destinies of the ius proprium had not become interwoven with those of the ius commune and if the latter had not offered a model, propitious terrain, and the raw materials to construct an overall vision of the law. This vision was realized on the level of the ius proprium in the multiplicity of the European political orders, which varied according to place and time and according to local traditions and original contributions and to the presence and the inventiveness of single individuals and entire peoples.
Thus the ius commune contributed to creating a single juridical civilization in Europe, a civilization that was not feudal but fundamentally urban and solidly built on a number of firm and staunchly defended ideas: imperium (which was public) and dominium (which was private); the liberty of the prince (“Quod principi placuit legis habet vigorem”; What pleases the prince has the force of law), and the need to observe the precepts to which that liberty led, as a way to guarantee stability to power and to defend the life of the individual—in a word, the new value of sovereignty.
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