Principles

Ideas do not entirely get their own way in real life; they are embodied in facts, and these latter appear influenced largely by material necessities and forces. It is not without importance for the development of legal principles whether the atmosphere surrounding them is that of a pasto­ral, an agricultural, or an industrial community; it is certainly of impor­tance for public and private law whether a nation is living an independ­ent life or has to submit to conquest, etc.

p. ViNOGRADOFF, Outlines OfHistoricalJurisprudence (1920)

Across epochs and peoples, legal thinkers have just as easily made recourse to principle at the earliest apprehension of a novel situation. In legal thought, principles will be observed to carry out a very different function to analogies, for they lend themselves to general rather than specific application, and ordi­narily tend to require a moral consensus. Whether principles are true or false, anachronistic or contextual, complicated or unsophisticated, they have often proven helpful to legal thinkers in the process of reaching a particular out­come. Principles are the perfect vehicles, in other words, for discretion and flexibility in order to reach perceivably good or �fair' ends.

In Old Kingdom Egypt, as Alexandre Loktionov reveals in his chapter, the religious concept of â€?right conduct' (M,^,'.t) was personified and worshipped as a goddess of truth. The related principle of â€?fair judgment' (wd'-mdw) was in­voked in offerings to the goddess of M,^,'.t. Similarly, the adulation of dike (∆iκη) in Ancient Athens may have performed the same kind of function, insofar as it too was associated with the acceptance within the community of empirical assessments of right and wrong, free and unfree, and so on.^[30]

Principles tend to be invoked in contemplations of the voids in written or doctrinal law, of which there is an early glimpse in the Aristotelian conception of epieikeia (⅛πιεfκεια).

When it came to the accommodation of foreigners from outside the com­munity, the Athenian principle of anthropinos (ανθρωπινος) was often put to work in legal argumentation. This is one of the findings provided by Alberto Esu in his contribution to this volume on the early history (or pre-history, de­pending on one’s perspective) of â€?judicial review’. And it finds an arresting - if unexpected - parallel in Sarah Winter’s chapter on the legalism of abolition­ism, where it is shown how the principle of humanity was turned into a vehicle for rights talk in the pre-history (or proto-history, again, depending on one’s perspective) of â€?human rights law’.

A feature of Roman legal thought from the third century BCE onwards is the increasing propensity of praetors and jurisconsults to query and dispense gen­eral principles of law and morality^[32] Expressions of principle proliferated from this time and survivie as precepts, maxims, regula and definition. Informing procedural and substantive law, principles are observed according to variable levels of strictness as rules, whenever they are given some positive charge by a court or a legislature. But, just as it happened in Ancient Athens, the strictness of such rules could just as easily be met with a corrective by the careful invoca­tion of a contradictory principle of law (few of which were more successful than those offairness).

For centuries, variation prevailed among magistrates over the ranking of certain principles, until finally the methodical reorganisation of the entire Ro­man law was orchestrated by the central imperial government - and just as that empire was beginning to lose all of its remaining legitimacy! This, of course, was the Corpus iuris civilis of Justinian’s reign, a succession of princi­ples, some of them �rules’ of mixed persuasiveness, in comprehensive lists, and classifiable loosely into categories of persons, things, and actions. But Justinian was not only a codifier of the laws, we must remember. He was also a legislator, as Weber points out in her chapter. Straddling a fence between two distinctly different empires, Justinian had to determine how far it would be possible (and unobjectionable) to impose, upon the newly dominant eastern portion, the time-honoured principles of law that had been worked out in the disintegrat­ing western portion. Weber is able to identify a number of dilemmas of this kind, by reading the Code alongside records of papyri and in reference to the authoritative principles endorsed in the Digest. And a very similar trend is to be seen in several of the chapters, following Weber’s, which deal with the recep­tion of the Corpus iuris civilis in different parts of Europe during the long Mid­dle Ages. Good lawyers had to be discerning with their principles of Roman law.

In the Middle Ages, principles of Christian teaching crept into neo-Roman legal thought, just as papal decrees and conciliar canons borrowed from Ro­man legal principles where necessary. A number of divine and human ideas became infused into principles of lasting importance in consequence of the coexistence of secular and sacred bodies of thought.^[33] �Political theology’ of this kind can pop up in unlikely places, such as the administrative concept of the census, which is the subject of Tiziana Faitini’s chapter. As she argues, the brute political realities of registration, taxation, and subjection were rational­ised and understood over many centuries of medieval thinking upon the New Testament. This argument, together with the arguments made by Mark Somos, Zachary Chitwood, and others reveal how it was (and to what ends) canonists, civilians, theologians, and politicians compared notes to forge out new princi­ples of law.

Principles of nature are perhaps the most manipulable of all principles - and, with this observation, finally we come up against that unshakable intel­lectual philosophical habit over the two millennia or so that elapse between the Laws of Plato and the enlightenment philosophes: that is, the justification of particularly inventive interpretations of something or other by making con­jectures about the condition of nature and human instinct within it. More important is it, within the scope of this book, that Gaius, Ulpian, Justinian, and Gratian all let �nature’ be a factor in law, so other legal thinkers inevitably followed - including, most influentially, Grotius. As Somos reveals in his chap­ter, natural law was one of the most profound elements of Grotius’s legal thought, particularly on the topic of the sea.

Looking away from Grotius (for a moment), it is possible to notice the diversity - and, by implication, the opportunism - of every appraisal of natural law offered by every one of its proponents, Grotius included. Placed into the service of boni et aequi, nature has never been more or less than a concept used to set out principles of an ad hoc kind. It was attractive to medieval and early modern legal thinkers for allowing more and more length to be leveraged onto the leashes that still bound them to ancients, apostles, and anybody else. For that reason, invocations of nature have been multiple and often strange.

A few examples selected from this volume will alone suffice for evidence in support of this generalisation. Zachary Chitwood introduces the eastern Mia- physite view of Christ (possessed of �one nature’), which was conceived in op­position to the Chalcedonian Christological perspective (that Christ was the embodiment of both a divine nature and a human nature). Dante Fedele re­veals how often (and complicatedly) the separate concepts of ius gentium (the law of peoples) and ius naturale (natural law) informed each other, which was almost as often as they contradicted each other.

In the light of all this variation, we must avoid the temptation to regard �nat­ural law' as a coherent body and source of law in the same way that the terms �civil law' and �canon law' are regarded. Civilians, who all referred back to Jus­tinian, worked within a distinct legal tradition meticulously elaborated in the works of commentators, glossators, and others after them.

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