POLITICAL CAUSES
Quality by itself is not enough to make legal innovation acceptÂable to society at large: the political will of those in power is also most important. It so happened that in the twelfth and thirteenth centuries the â€?common learned laws’ of the Faculties provided intellectual ammunition to the ecclesiastical and secular leaders who were building modern, centralized power structures.
Popes, kings and regional princes were leaving the archaic feudal age behind and erecting the well-ordained and forcefully led orgaÂnizations that became typical of modern Europe. It is obvious that the message of the late imperial Corpus iuris fitted their plans perfectly, as it was full of the majesty of the state and the unlimÂited power of the emperor, who â€?was not bound by the laws’ and whose â€?pleasure had the force of law’. These axioms, applied to the medieval kings (who were â€?emperors in their own kingdoms’), were a welcome support for their endeavours at unification and centralization. The technical training in the Schools moreover provided Church and state with professional lawyers who could run the daily administration of the reinvigorated monarchies. â€?Here emerged’, in Berman’s words,â€?for the first time strong central authorities, both ecclesiastical and secÂular, whose control reached down, through delegated officials, from the center to the localities. Partly in connection with that, there emerged a class ofprofessionaljurists, Includingprofessionaljudges and practising
same author is the Quadripartitus. See on the complex problems posed by both works: P. Wormald, â€?Quadripartitus’, in G. Garnett andJ. Hudson (eds.), Lawandgovernment in medieval England and Normandy. Essays in honour of Sir James Holt (Cambridge, ι 994), 111 —47. Wormald, p. 113, comments on the relative neglect of the collection and thinks that â€?the barely penetrable opacity of [the author’s] Latin’ may be one reason for it.
lawyers. Intellectually, western Europe experienced at the same time the creation of its first law schools, the writing of its first legal treatises, the conscious ordering of the huge mass of inherited legal materials, and the development of the concept of law as an autonomous, inteÂgrated, developing body of legal principles and procedures. The comÂbination of these two factors, the political and the intellectual, helped to produce modern western legal systems, of which the first was the new system of canon law.’[98]
The Corpus iuris favoured a centralized and hierarchical state and an organized, streamlined bureaucracy. It was a monument to the �descending theory of power’ and provided a model for what the papacy and the monarchies were trying to achieve.
Illustrations of this interplay are not difficult to find. During the first years of his reign the German King-Roman Emperor Frederick I Barbarossa had subjugated the rebellious city of Milan and the rest of his north Italian kingdom. In so doing he was supported not only by the swords of his knights, but also by the new legal science. At the meeting at Roncaglia in 1158 the Bolognese professors had proclaimed, with Justinianean texts in hand, the fullness of power of the emperor, the domiÂnus mundi who knew no equal. â€?It was’, in Ullmann’s words, â€?at the Diet of Roncaglia that the ideological alliance between the Staufen empire and the Roman lawyers of Bologna was cemented’.[99] This same emperor issued a decree in favour of the law students of Bologna, the famous authentic constitution Habita, which granted laymen who studied Roman law the same privileges as were enjoyed by the clerics who studied canon law. The imperial government, â€?which held itself to be a successor of the ancient caesars’, understood the need for â€?an adequate supply of properly trained personnel, and this trainÂing could evidently be had only at the advanced level provided by Bologna’.[100] In the next century Frederick II, the last great Hohenstaufen emperor, founded in 1224 the university of Naples, which was specifically expected to provide imperially minded lawyers and to train the ruling class of his kingdom of Sicily.
In the following year diverse measures in favour of his new university were taken by the emperor who â€?aspired to nothing less than creating a great intellectual elite to sustain the imperial throne with the instruments of law and the prestige of culture’.[101]Towards the end of the thirteenth century the powerful king of France, Philip IV the Fair, was employing his legists, i.e. lawyers who had studied the leges of the Romans, in order to support his quest for full sovereignty throughout his kingdom. Like their predecessors at Roncaglia they used the leges. This time it was against the aged count of Flanders, Guy de Dampierre, who was involved in a bitter conflict with his royal suzerain and who, to â€?imperial’ eyes, represented the old feudal order and was oblivious to the unique majesty of the state and the potestas regia: it was significant that the count was condemned by the Parlement of Paris for laesio majestatis, a typically Roman, anti-imperial offence.[102] Around the middle of the thirteenth cenÂtury the FrenchjuristJean de Blanot, whom we mentioned in chapter ι, had shown how feudal principles could be eliminated by appealing to Justinian’s lawbook. He vigorously denied that a vassal had to help his lord against the monarch because this â€?insurrection against the king’ would be an offence under the old Roman lex Julia maiestatis (Dig. 48,4; Cod. 9, 8), which protected the magistratus populi roman.
The renewed papacy under Gregory VII and his successors was also close to the teaching of Bologna. The science of canon law, which was founded there, was indebted to the civilians, as no canonist was worth his salt without thorough grounding in the Corpus iuris civilis. The imperial hierarchy of ancient Rome was a source of inspiration for its late medieval counterpart in the papal curia. And when the ecclesiastical courts were modÂernized, around AD 1200, their judges, the episcopal officials, were invariably university graduates.
Modern government and neo-Roman law lived in symbiosis, in the Church as much as in the kingdoms.If the ius commune influenced the modernization of governÂment, it did not cause it: things had started to move before the legum professores were teaching and their pupils manning the councils of state and the law courts. The point is worth making, because the highly visible impact of the Schools might easily create the wrong impression. The â€?great leap forward’ started with the Gregorian reform, which aimed at wringing the libertas ecclesiae from the kings and princes. In so doing it established the undisputed supremacy of the pope over the whole Latin Church. The success of the movement and the consequent sepÂaration of Church and state caused such a profound change that H. J. Berman, in his aforementioned Law and revolution, arÂgued that the traditional names of the â€?Gregorian reform’ or the â€?investiture struggle’ are inadequate and that â€?papal revolution’ is better suited to indicate the real impact of this â€?first major turning point in European history’. This â€?papal revolution’ was prepared and launched by Pope GregoryVII, first as a member of the curia (ad 1050-73) and then as pope (1073-85). These events were
8 The â€?king of France being emperor in his kingdom, because he recognizes no superior in temporal matters’, this imperial law applied to the Capetian rulers. See M. Boulet- Sautel, â€?Jean de Blanot et la conception du pouvoir royal au temps de Louis IX’, in Septieme centenairede la mort de Saint Louis. Actes des colloques de Royaumont et de Paris (21 —27 mai 1970) (Paris, 1976), 57-68, esp. 67. well ahead of the School of Bologna and its â€?Four Doctors’. Not long afterwards several states similarly entered the road to modÂernization through the strengthening of the central government, the organization of local administration and the rationalization ofjudicial procedures: the â€?Anglo-Norman empire’, the county of Flanders and the Norman kingdom of Sicily were the pioneers on the road to modern statehood, soon followed by Capetian France.
All this was going on in the twelfth century at a time when the Schools were just beginning to find their way and with little or no help from their graduates: neither King Henry II of England (ι 154—89) nor Count Philip of Flanders (ι 157 —91) were surrounded by legists. Things changed, as we have seen, in the thirteenth century, but what had come first was the poÂlitical will to modernize government; once that programme was launched, it gratefully used the intellectual support of the schoolmen and their treatises. Modern statehood was produced not by Justinian, but by rulers who wanted to provide orderly government and by their subjects who wanted efficient adminÂistration. The intellectuals and the sophistication to carry the reforms through came, however, to be largely provided by the ius commune and the two Faculties of Roman and canon law.[103]