The history of Roman law is a classic question of the longue duree.
Why did it retain its importance as a living law through the Middle Ages and certainly into the eighteenth century? Indeed, it remains an ultimate source for still surviving systems of law.
How this law was interpreted varied in different historical contexts in particular times and places. This paper is concerned with one period, that of the late Middle Ages (the fourteenth and fifteenth centuries in particular) and the specific question of how Roman law jurists dealt with the problems associated with ideas of empire.But focusing on Roman law on its own in these centuries is highly problematic, because it did not stand alone, being connected to other forms of law. One system of law stood out as providing what purported to be a comprehensive understanding of the world from a legal perspective - a true philosophy as its jurists claimed: the ius commune (common law) of the Roman and canon law. The term, ius commune, in this sense is one of art introduced by modern historians in the mid-twentieth century; indeed, it has been fashionable to use it for some time.[666] It seeks to reflect the way in which late medieval jurists used the scholarship of the Corpus iuris civilis and the Corpus iuris canonici in tandem, and were so often doctors of both laws. In their argumentation, jurists would use both Roman and canon law authorities: canon law texts could be employed in commentaries on the Roman law and Roman law passages in commentaries on the canon law. But the vast bulk of jurists were primarily either civilians or canonists. Bartolus of Sassoferrato (1313/14-1357), for instance, was a civilian with a great knowledge of canon law.[667] The big exception was Baldus de Ubaldis of Perugia (1327-1400) who was both a civilian and a canonist.[668] He justified using a combination of texts from both laws in his arguments: ?The sanctity of
Koninklijke brill nv, leiden, 2020 | doi:io.ii63/9789qq4431249_oii
Edward Cavanagh - 978-90-04-43124-9
Downloaded from Brill.com06∕27∕2020 12:07:41AM
via University of Sydney
canon law is decorated by the sublimity of civil law and conversely the majesty of civil law is strengthened by the authority of the canons, and the one shines on account of the other and is the more feared’.[669] Both Bartolus and Baldus used the term, ius commune, not in the modern sense but as a synonym for the Roman law as the common law of the Roman empire and Italy in particular.
In the Corpus iuris civilis, of course, the ius gentium was described as the ius commune of all mankind.[670]If one uses the term, ius commune, as a category in a modern sense, one should bear these reservations in mind. Clearly, the notion of the ius commune as a combined Roman and canon law system is a hybrid one. It is perfectly true that Roman and canon law had separate existences as the phenomenon of separate church courts attested. But there was an older justification for bundling Roman and canon law together, because canon law developed historically under the influence of Roman law and there was an ancient tradition of Romano-canonical legal procedure from the early Middle Ages onwards. Furthermore, to describe the ius commune as a legal system, as its modern apologists do, could be misleading. It was not as internally articulated as a modern system and could perhaps be more accurately described as a legal ordering.
That the canon law should have had such a high profile, reaching as it did into all parts of western Christendom, is easily explained by the universal spread of the church as a legal institution. In the Middle Ages, the legal aspect of religion was developed to a very high level through the evolution of the canon law, culminating in the Corpus iuris canonici, comprising Gratian’s handbook, the Decretum (c.1140) and codifications of papal decretals from the Liber extra of Gregory ιx (1234) to the Extravagantes of John xxιι (1317). The Corpus iuris canonici remained the official canon law of the Catholic Church until the Codex iuris canonici of 1917 - itself supplanted by the new code authorised by Pope John Paul ii.[671]
The medieval church was pre-eminent in the elaboration of the language of power in jurisprudential terms. It was accepted that canon law applied in spiritual matters and that marriage was classified as a spiritual relationship. But in the papal lands in central Italy, canon law was also the law of the land in civil matters.[672] It was supplanted by other church legislation, for example the Aegid- ian Constitutions of Cardinal Gil Albornoz.
The pope was the sovereign ruler of the papal lands. Bartolus, for example, accorded superiority to Roman law in civil matters and to canon law in spiritual ones, in the lands of the empire in north Italy. The Corpus iuris canonici derived its legal authority from the will of the pope - there was a deep connection between the development of canon law and the notion of hierarchy. But there were elements in canon law which were used by fifteenth-century conciliarists to moderate the pretentions of the papal monarchy.[673]It is not so easy to account for the pre-eminence of Roman law in the Middle Ages, certainly from the late eleventh and twelfth centuries. Its home territory was Italy and southern France, although knowledge of it spread in varying degrees throughout western and central Europe, especially in universities.[674] I would suggest five reasons why Roman law was accorded such authority. Firstly, given the medieval mind-set of reverence for antiquity, the Corpus iuris civilis provided a ready-made and apparently comprehensive, ancient code of law. Secondly, it was technically superior to local forms of law. Thirdly, there was the historical precedent of the so-called barbarian law codes. Fourthly, in Italy at any rate, there was a sense that the Romans were the ancestors of the Italians and that Roman law was therefore their law. Fifthly, there was the continued existence of a Roman Empire with a Roman Emperor. These were all good reasons but I wonder whether they fully explain this second life of Roman law. The Corpus iuris civilis had been codified in the sixth century and fully recovered by the 1080s. Even so, it was seen as a living and relevant law in the fourteenth and fifteenth centuries, although the depth of the historical gulf between their times and those of ancient Rome was increasingly perceived. A crucial part of the attraction of Roman law was its supposed rationality, a characteristic it shared with canon law.
Roman law was understood to be written reason (ratio scripta). In the late Middle Ages, the connection between the Roman law and the Roman emperor was maintained. But in the early modern period, the Roman law as a rational system of law became increasingly separated from the institution of the Roman Empire itself - it became an autonomous legal system of general application.But in the late Middle Ages, the authoritative texts of civilian jurisprudence were not restricted to the Corpus iuris civilis. The Librifeudorum was the most important text of medieval feudal law. It was based mainly on Lombard feudal law and its first recension at Milan dated from the mid-twelfth century.[675] [676] The early development of the scientific jurisprudence of feudal law took place within the context of a combined Roman and canon law approach. The consolidation of this scholarly endeavour came in the 1220s with the commentary of Accursius (1181/5-1259/63). From the 1230s, the Librifeudorum was treated as part of the Corpus iuris civilis: it was added as a tenth collation to the Authenticum, the form in which Justinian’s Novels were passed on to the Middle Ages. As a result, study of the Librifeudorum became a standard part of civilian jurisprudence through the medium of Accursius’s glossa ordinaria, which formed the culmination of the work of the school of the Glossators on the Roman law. Later commentaries on the Librifeudorum were written with the most influential being that of Baldus in 1393.11 Indeed, feudal law continued to form an integral part of the scholastic study of Roman law into the early seventeenth century. But the ius commune of the Roman and canon law was above all a law of experts, the jurists trained in law faculties of universities. The works of jurists took a variety of forms. In the first place, there existed a mass of commentaries on the texts of the Roman law and canon law, together with tracts on specific topics and quaestiones on matters of debate. In considering thejurisprudence of the ius commune of the Roman and canon law in the late Middle Ages, there is a good reason for taking the fourteenth and fifteenth centuries together. Fifteenth-century jurists on the whole tended to produce exhaustively cross-referenced encyclopedic works reiterating the opinions of the mass of fourteenth-century legal authorities. There were however some fifteenth-century developments notably in the juristic treatment of the power of princes. In these two centuries, jurists intensified the work of adapting the Roman and canon law to changing political and social conditions. The texts of the Corpus iuris civilis and the Corpus iuris canonici provided permanent legal authorities but change was reflected in their interpretation. The task was to provide justification for emerging and indeed novel political forms in terms of inherited legal forms found in the authoritative legal texts. In the late Middle Ages, a specific jurisprudential problem attached to the position of the Roman emperor and empire. Thereupon the Roman people set up the emperor and transferred all its power to him, and afterwards this was confirmed by the express word of God, when he said, “Let the image of God be rendered unto God and the image of Caesar unto Caesar”. And this was also approved afterwards by the church.13 The divinely-sanctioned jurisdictional powers of the emperor and the pope remained the twin pillars of the whole structure of law applying to Christendom. The emperor and the pope retained universalist powers of legitimation. It was not in the power of jurists as mere human beings to gainsay a divine dispensation. The revocability or otherwise of the lex regia was much discussed by jurists in the thirteenth and early fourteenth centuries, with a large body of opinion in favour of its revocability. Azo (d. 1220), for instance, held that the Roman people had conceded power to the emperor but had not abdicated it, with the result that the people retained its capacity for general legislation, the emperor being in no way superior to the people as a whole but only to individual members of it.[679] Bartolus held that whatever had been the case, when the lex regia was passed, had become irrelevant: originally the people had retained the capacity to elect and depose the emperor and to legislate but by his day the German princes elected the emperor and the pope deposed him - the Roman people had abdicated its imperium and thus its right to legislate. In his most pro-papal work, Bartolus adopted a hierocratic position advocating a papal source for imperial power, an approach which transcended the whole question of the lex regia. Baldus, in contrast, held that the lex regia had been an irrevocable transfer of sovereignty from the start. It was the necessary first stage through which the fundamental constitution of Christendom was established whereby temporal authority was divided between the emperor and the pope. The lex regia was a human measure which instituted the perpetual and universal empire; this empire was divinely approved and then expressly sanctioned by Christ himself and later by the church. The lex regia also served as the basis for the Donation of Constantine upon which papal temporal jurisdiction depended and which placed the contemporary Roman people under papal rule. The people though the lex regia gave general legislative power to the emperor whose successor, Constantine, gave it to the pope. If the lex regia were to be considered revocable, then the major justification for the papal claim to temporal jurisdiction in the papal patrimony would be removed. But the basic problem jurists faced was that political conditions in the late Middle Ages were so far removed from those in the sixth century when the Corpus iuris civilis was codified. There was a Roman emperor but his position was very different from that of Justinian. In reality, his actual power was restricted to certain areas in central Europe and a form of overlordship in the lands of the empire (terrae imperii) in Italy north of the papal states. Roman law jurists had to find solutions to the problem of the coexistence of the empire and a mass of kingdoms such as those of France, England and the Iberian peninsula, and also of independent Italian city-states, some governed as republics, some ruled by lords (signori). The canon law did not face this problem and reflected political changes more directly. The issue in public law terms was how to cope with a situation in which the emperor and the pope claimed forms of universal sovereignty, while there existed simultaneously rulers and political entities claiming territorial sovereignty. In terms of Roman law jurisprudence, there was available the category of the law of peoples, the ius gentium, which explained the origin of kingdoms and which could be extended to cover other forms of political organisa- tion.[680] [681] [682] The fundamental conundrum was the claim in the Roman law that the emperor was lord of the world. How could this be reconciled with the claims of kings and republics? Surely all de iure power must lie with the emperor. It is a truism to say that change is a fundamental characteristic of human life. Any living law has to cope with the relationship between the law as it stands and developing and new conditions. The problem for Roman law in the Middle Ages dramatically illustrated the tensions between permanence and changed6 Jurists inherited an authoritative codification of law from antiquity with the addition of a very few medieval imperial edicts and the Librifeudor- um. The interpretation of the Roman law to cope with developing political, social and economic conditions required a complicated interaction between arguments based on authority and others based on fact, including a recognition that many emerging political forms were based on self-authentication. Baldus perfectly understood the juristic problems thrown up by historical change and deliberately opted to focus on the interpretation of Roman law to cope with his contemporary conditions rather than those which obtained in antiquity: I say therefore that our laws consider time and create their legal enactments in time. For time which has quite receded from human memory is for that reason thought of as if it had never been, because it has been destroyed and consumed by a different usage. What does it matter to us whether Caesar or Pompey ruled more justly? Certainly, it is nothing to us. For it was our ancestors who lived under Caesar. So, let us get on with our own lives. Roots are not to be scrutinised, because man cannot find the cause of all God's works. Time which gives him life gives him law. But time is always with us - that is what gives us custom, that is what gives us law. By time we live, are nourished and exist?7 He had a developed historical sense but one which led him to a different approach from that of the sixteenth-century legal humanists who sought to understand the Roman law in its original historical context and criticised the Commentators for their attempt to interpret that law in terms of their contemporary society. The authority of the text of the Corpus iuris civilis was taken as something given on which to base juristic argument. Originally, the emperor as God's vicegerent on earth had been understood to have given authority to the codification; by the late Middle Ages it was more that the Corpus iuris civilis enshrined the principle of the ultimately divine authority of the emperor. Power can be legitimised in a variety of ways: according to its origins, its purpose and its mode of exercise. The solution to the problem of how to reconcile the universal claims to authority of emperor and pope with those of territorially sovereign powers, whether republics or forms of monarchy, was elaborated by Roman law jurists in terms of the de iure-de facto argument.[683] [684] In terms of Roman law, the universal de iure authority of the emperor could not be denied but arguments were produced which limited the application of that authority. In particular, the sovereign attributes of the emperor or princeps were transposed first to kings, from the end of the twelfth century, and then to some cityrepublics, a move made by Bartolus in the mid-fourteenth century. Bartolus recognised the full legitimacy of de facto legal claims. But the question is: what lay behind this acceptance of de facto argumentation? What did it mean and why was it found persuasive? The Bartolist de facto argument was an expression of a fundamental juristic mind-set, that law was concerned with the facts of human life. Baldus famously expressed this view: Every art takes nature for its material... but the jurist takes the works of man for his material. Again, he interprets them; and thus our law is founded upon accidentals, that is on cases which emerge. for laws are born of facts. But the common material [of legal science] is not concerned with the works of nature but of man.19 A string of concepts employed in juristic discourse articulated this orientation in various ways. The notion of custom itself reflected it, expressing the results of repeated practice. In the course of the thirteenth and fourteenth centuries, it became more clearly understood that custom was produced by people’s tacit consent, as opposed to statute, the product of express consent. But why should consent create valid law? One had to begin somewhere: the alternatives that presented themselves were either an external divine authoritative source of legitimacy or the consent of the people. The Roman law category of the ius gentium encapsulated the legal experience of humankind. Bartolus had subdivided it into two subcategories: the primeval kind containing general principles of law akin to those of natural law, and the secondary form identified with the actual laws which human beings generally made. Those who used biological analogies likening the body politic to an animal were arguing from the facts of what it meant to be a human being. Likewise, arguments from nature, especially those made by jurists employing an ultimately Aristotelian conception of natural political man, relied on presuppositions about the facts of human life. All these arguments - the de facto one and those from custom, from the ius gentium and from nature - had in common the approach that law did not have to be sanctioned by superior authority to be legitimate. These were general statements about the making of law. But when the question became more closely focused on what person or what body had the power to govern and make law, issues of the legitimacy of power were involved. A whole area of what amounted to self-authentication came into play. The willingness to consider the practical experience and development of the varied forms of polities resulted in the conclusion that power to be legitimate did not have to be approved by any superior. Authority came from within not from without. Furthermore, the question of the construction of authority from below was well illuminated by a crux of the Roman law. The very first law of the Code (Cunctos populos) begins, ?All peoples whom the sovereign authority of our clemency rules’.[685] Juristic discussion revolved around the question of whether this was meant declaratively or restrictively. Did the text imply that all peoples in the world were subject to the authority of the Roman emperor or did it refer only to those which were actually subject? In other words, the authority of the emperor could apply only to those who recognised and accepted it - the will of the emperor was irrelevant. All the above were the general principles involved in the approach of Barto- lus and Baldus, and of their pupils andjuristic heirs in the tradition of the Commentators through the fifteenth and into the early sixteenth centuries. The question now is: how did they apply this approach in dealing with specific forms of political entities? How did they seek to justify particular forms of the possession and exercise of political power? Bartolus had initiated the use of the de facto argument to justify the reality of the sovereignty of city-republics in terms of Roman law, a reality which had emerged with the retreat of imperial power in Italy in the thirteenth and fourteenth centuries. He maintained that such cities could obtain full legitimacy for their statute-making on a de facto basis. At heart, his argument explored the implications of consent. The first stage was articulated specifically in terms of authority (auctoritas). Just as custom, being tacit consent, did not require the authorisation of a superior, so statute, being express consent, could be made without the authorisation of a superior (absque superioris auctoritate). This meant that cities possessed their own authority to make statutes (auctoritas statuendi) without anyone else's interference. The next stage was the recognition that cities could reach the level of non-recognition of a superior - the fundamental prerequisite of sovereignty; such a city was a populus liber (free people). The culmination of Bartolus's argument was his elaboration of the notion of the city which was its own emperor (civitas sibi princeps), a move which applied to cities the established formula that a king who did not recognise a superior was the emperor in his kingdom (rex in regno suo est imperator regni sui). In terms of Roman law, given the de iure position of the emperor, any justification of the sovereignty of cities had to be in de facto terms. So much so very well-known and the strengths and weaknesses of this approach have been explored.[686] Baldus in contrast adopted Bartolus's legal argument from consent but went far more deeply into the justifications for it, although he chose to say that a sovereign city was in the emperor's place rather than identified with him. At the level of purely legal discourse, Baldus applied the category of the ius gentium to the cities and extended the implications of so doing. Peoples derived their very existence, and with it their power of self-government, from the ius gentium which antedated and was more fundamental than the ius civile. He combined with this approach, two other ways of thinking. He introduced biological imagery, likening the people to an animal. Just as an animal simply existed, so did a people with its own form of government. The people, viewed through the lens of the animal analogy, had an inherent capacity for self-preservation through an autonomous power of self-government. This was clearly a self-authentication argument. No superior was involved. One is reminded of Marsilius of Padua's similar use of biological argument, although there is no suggestion, or at least no proof, that Baldus was influenced by his work. The self-preservation argument was enormously powerful for reinforcing the complete independence of any polity with actually existed - any claims by a would-be external superior were simply ruled out. Self-preservation was a non-authority argument which could side-line an authority one because it was simply different in kind. Similarly, Baldus, who had the reputation of being the most philosophically-minded of the jurists, also applied Aristotelian political concepts in a more systematic way than had any of his predecessors or contemporaries. He employed the Aristotelian concept of the citizen as natural political man. Thus city-populi enjoyed de facto under the ius gentium powers of sovereign self-government as an expression of their citizens' political nature. The ius gentium was such a useful category because, as a product of reason, it was a legal expression of human beings' political nature which persisted and upon which any de iure structure of the ius civile was superimposed. Again, the combination of the de facto argument, the category of the ius gentium and the Aristotelian notion of natural political man produced an argument which was not an authority one but which could trump any recourse to authority. At the legal level, the ius gentium was doing the most work in Baldus' thinking. The move to a philosophical level added another dimension of explanation. The recourse to Aristotle reflected the fundamental characteristic of Baldus' overall method of argument. Aristotelian political thought made no use of the category of authority - ancient Greek thought did not go down this route: in Athens, for instance, debate was conducted rather in terms of force and persuasion. The stress on authority was a Roman way of thinking which heavily influenced the intellectual development of the western form of Christianity. By having overt recourse to the Aristotelian notion of natural political man, Bal- dus was providing a philosophical justification for a non-authority argument accepting the facts of human political existence. But this approach was also juristically justified because the world of fact was contained in the category of the ius gentium itself. Furthermore, his biological approach also incorporated Aristotelian notions. Baldus saw the law in a far wider intellectual framework; he was fundamentally a lawyer who used philosophical insights and contributed to biological and indeed medical understandings of the nature of polities.[687] Baldus applied the same de facto argument to justify the sovereignty of kings in terms of Roman law. He followed the, by then, traditional view that the king in his kingdom was the emperor of his kingdom. Again, the underlying legal category employed was the ius gentium. The Digest stated that kingdoms were the product of the ius gentium.[688] [689] [690] The ius gentium applied to the primitive conditions before the creation of the Roman law and also to peoples outside the empire (populi extranei). But Baldus also considered that the ius gentium remained a validating source for kingdoms in his own day, drawing attention specifically to the case of Castile. He was elaborating a consent argument reflecting political facts. Free peoples constituting respublicae, and who could elect their own kings, enjoyed the same maiestas as the Roman people. Baldus was, however, willing to place kings above the level of city-republics in that he accorded imperial attributes of suprema potestas (supreme power) and plenitudo potestatis (plenitude of power) to kings but not to cities in a hierarchy of sovereignty. But Baldus' most important contribution lay in his application of corporation theory to kingdoms. He elaborated the classic treatment of what Ernst Kantorowicz named the theory of ?the king's two bodies'?4 Baldus maintained that the kingdom was distinct from its members in its abstract and perpetual aspect as the corporation (universitas) or ?republic' of the kingdom (respublica regni). The immortal corporation of the kingdom created an undying legal person in the royal office or dignity (dignitas) which it conferred on its mortal king to operate - the king was the instrument of his dignity. Baldus was contributing to ideas of the crown in making a distinction between the mortal individual king and the immortal kingdom he ruled. There was a further case which provided a juristic crux for the problem of accommodating the Roman law to changing political reality: the emergence from the mid-thirteenth century of the process whereby lordships (signorie) tended to replace republican regimes in north and central Italy. This trend intensified in the fourteenth and fifteenth centuries and culminated in the appearance of the late medieval and early Renaissance prince?5 This was a new phenomenon which went beyond the categories of the Corpus iuris civilis. It was a challenge to deal with it. Part of the problem was that it was a matter of perception. In the eyes of those committed to a republican ideology, these signori were tyrants or despots. Bartolus, for instance, was opposed to them on the grounds that their rule was illegitimate either because of the way they came to power or because of the way they exercised it. But such signori became an inescapable fact of political life. Was it possible to have a more morally neutral attitude to them, accepting them as one form of rulership amongst several? After all, no signore ruled formally on the basis of force alone, however he may have originally come to power. Signori relied on grants of authority from their communes to legitimate their regimes. These measures were then commonly reinforced by vicariates conferred by the two universal legitimating powers, the emperor in the terrae imperii in north Italy, or the pope in the lands of the church.[691] [692] [693] Baldus was much more sympathetic to signori, spending the last ten years of his life serving the greatest of them all, Giangaleazzo Visconti, lord and then, after 1395, duke of Milan?7 Baldus accepted both de iure and de facto justifications of the rule of signori. The king of the Romans, Wenceslas, had granted the imperial dukedom of Milan to Giangaleazzo in 1395 and had extended it with a further grant in 1396. This dukedom was feudal in form and raised Giangaleazzo to the same level as any other imperial duke. Baldus, like other Milanese courtiers, considered that, with this grant, the empire had been resurrected from the dead in north Italy. But Giangaleazzo's position was somewhat ambiguous. As Baldus recognised, because Giangaleazzo's power was by de iure grant from an external superior authority, the emperor, he was the emperor's subject. Yet within Milan and its territories, the duke was the internal sovereign over his subjects. There was in short, a conflict between internal and external sovereignty. Above all, Baldus accepted that Giangaleazzo and other Lombard signori claimed and exercised a characteristic mark of sovereignty - plenitude of power. Baldus was simply willing to accept the fact that signori wielded such power de facto, that is by custom, whereas in Gian- galeazzo's case he did so de iure by virtue of his dukedom which accorded him the powers of the emperor in the territories of Milan. Already in Baldus' consilia, we can see the move whereby the Lombard signori were described as princes (principes), as in his reference to the ?glorious princes of the house of the Visconti'.28 In fourteenth-century juristic discourse, a ruler who was the accustomed and accepted lord of a people was understood to exercise natural lordship (dominium naturale) over his subjects. This was guaranteed by the iusgentium and applied to kings and princes, dukes, marquises and counts. But were the signori natural lords? At first, they were not because of the novelty of their regimes. But they could aspire to the position of natural lords in time through acceptance and familiarity. The Visconti as hereditary princes had become part of the political landscape in Milan. In the fifteenth century, jurists progressively consolidated the basis for the legitimacy of the rule of the Visconti and then were faced with the difficult task of justifying the rule of Francesco Sforza. The de iure-de facto set of arguments to preserve the universalist claims of the emperor accepted the validity of territorially sovereign bodies, but presupposed that the emperor was the model and exemplar of sovereign power and authority. The figure of the princeps was therefore the focus of discussion concerning the extent and limitations of the ruler's power.[694] The notion of the absolute power (potestas absoluta) of the princeps was developed but this did not mean absolute power in a modern sense. He was understood only to be freed from human laws not from higher norms, such as divine law, natural law and the requirements of the ius gentium. The common opinion of jurists was that he had to respect the property rights of his subjects and was not justified in removing their property without just cause. There was, however, an important minority opinion on this matter. Baldus held that the emperor could confiscate his subjects' property without any cause other than the exercise of his absolute power through his will alone. Baldus stated that in such a matter, ?Whatever reason motivates the emperor is cause enough'.[695] Furthermore, he also said, The goods of the individual do not belong to the princeps... The emperor can, however, dispose of these though his absolute power, as if they were his own, and especially, if he has a cause[696] Such a cause was clearly not essential. This startling approach was noticed, as for instance by Philip Decius, and marked a significant beginning for later developments of notions of absolute power.[697] [698] [699] [700] Baldus' brother, Angelus (d. c. 1400), was even clearer in his expression of this argument. He said that in relation to property rights of individuals, ?The princeps by his absolute power can remove the rights of individuals',33 and that ?The emperor by his plenitude of power can remove our property from us even with no cause urging him to do so'.34 In fact, Angelus had the pope rather than the emperor in mind. This neatly illustrates the way in which jurists were able to apply attributes of the emperor to the pope (as papal prince) and also originally papal powers to the emperor (as in the case of plenitude of power). But this minority opinion of Baldus and Angelus caused problems for later thinkers. Jean Bodin for instance, expressly rejected it as providing a licence for the strong to dispossess the weak.35 The mainstream of civilian jurisprudence indeed adhered to Bartolus's de iure-de facto solution. The kingdom of Sicily, however, posed its own unique problems. It encompassed both the island of Sicily and that part of the Italian peninsula south of the papal states, although from 1302 it was divided between the island itself and what later became known as the kingdom of Naples. It claimed independence from the overlordship of the emperor but was accounted part of the lands of the church (terrae ecclesiae). The Emperor Henry vιι notoriously claimed sovereignty over King Robert of Naples but a series of Neapolitan jurists, supported by Oldradus de Ponte (d. 1335), argued that the independence of the Kingdom of Sicily was based on the ius gentium; they therefore denied that the emperor was de iure lord of the world. Claims based on the ius gentium were anterior to and stronger than claims to imperial overlordship based on the Corpus iuris civilis which was no more than the ius civile of the Romans and not valid for other peoples. Andreas de Isernia (d. c.1316) maintained that, in his day, kings in their kingdoms had as much power as the emperor in the lands of the empire which was reduced in Italy to parts of Lombardy and Tuscany. Kingdoms and the empire were the same kind of territorial body. As he said, the world had returned to its pristine condition before the conquests of Rome.[701] A new research question has recently emerged: did the Roman and canon law jurists of the late Middle Ages, through treating the relationship between universal and territorial sovereignty, contribute to the origins of international law? The question is an intriguing one which has to be considered because it has been posed. The answer is not at all clear not least because the instinct of a medievalist would be to say that the category ?international’ belongs properly to a later era: that its application to the Middle Ages would be anachronistic. Modern international law is concerned with the relations between states, that is with a horizontal relationship. The late medieval jurists treated the relationship between the universal authorities of emperor and pope and the territorial powers of kingdoms, city-states and lordships - an essentially vertical relationship. The crucial category was the iusgentium a higher norm understood as having universal validity. But the medieval jurists did not make the crucial shift to employing the concept of the ius inter gentes (law between peoples), a sixteenth-century innovation which facilitated studying the relations between territorial states, which were treated as being on a par with one another. The jurists’ use of the de iure-facto dichotomy is of course fundamental to answering the overall public law question of the relationship between universal and territorial powers. But it is recognised that late-medieval jurists also contributed to the early development of private international law in the sense of conflict of laws. Such cases would for instance arise through the conflicts between statutes of different Italian city-states. Problems arose when a citizen of one city moved to live or do business in another. Likewise, there were questions concerning the citizen status of women since there were grades of citizen, as when a woman married a citizen of another city and lived with him there or elsewhere. Jurists used Roman law to provide relevant general legal principles for such cases. Since international law involves the application of generally applicable higher legal norms, the wide-ranging attention which the jurists gave to natural law, the ius gentium, and the ius divinum is highly relevant. Sophisticated attempts were made to provide limitations to the power of the ruler in the context of the treatment of the tension between the ruler’s will and normative values, particularly important in matters concerning property. Finally, the late-medieval jurists made important contributions to the notion of just war, a topic highly relevant to the modern discipline of international relations, a discipline which was largely founded in response to the First World War. One can at least begin by asking the research question whether the jurists, in discussing these matters, were beginning to look at them from an international law perspective; but I have to say that, as things stand, the solution is not clear either way: it is a work in progress.[702] In conclusion, it is clear from a study of the late medieval jurists that the idea of empire was taken very seriously and served highly useful legal purposes. The role of imperial vicariates given to both signorial and communal regimes was a case in point. The idea of empire had force but it is a different matter if one asks whether the emperor had real power. It is conventional to argue that in terms of such power the empire was in steep decline after the death of Frederick II in 1250. But at the level of jurisprudence and political thought it is striking that some of the most articulated defences of the role of the Roman emperor appeared in the fourteenth century. Quite apart from the writings of the Roman law jurists, Dante Alighieri (1265-1321) and Marsilius of Padua (1275/80-1342/3), for instance, produced highly sophisticated proimperial arguments[703] It was by no means clear to contemporaries in the fourteenth century that the emperor increasingly had no clothes. Dante had every hope that Emperor Henry vιι would re-establish real imperial power in Italy to solve its problems of division. Marsilius hoped that Lewis ιv would be able to do the same, in order to destroy the illegitimate claims of the papacy (which Marsilius considered had ruined the peace of the peninsula) and thus fulfil, in practice, Marsilius' aim in writing the Defender of Peace, ?Looking to you also in particular, as God's minister who will bring this work to the end which it desires from outside, Lewis most renowned emperor of the Romans'[704] The future still lay with the late medieval scholastic Commentators on the Roman law because they continued to be studied in universities into the seventeenth century and provided the necessary basis for the practice of law. Their discussions about empire continued to be known well into the early modern period. The school of legal humanism which emerged in the early sixteenth century existed in parallel and, as we have seen, attempted to understand Roman law and its ideas of empire more in terms of the original historical context in which they were produced. Humanist jurists, such as Andrea Alciato (1492-1550), had, nonetheless, a thorough knowledge of late mediaeval scholastic jurisprudence and were in detailed debate with their predecessors, especially the Commentators. But the methods used by humanist jurists led them to reject many of the Commentators’ interpretations. Albericus Gentilis (1552-1608), for instance, however he is classified, notably rejected Bartolus’s de iure-de facto argument concerning imperial authority.[705] But the nature and significance (and indeed impact) of legal humanism is much debated in modern scholarship and often the sharp distinction between a ?humanist’ and a ?scholastic’ approach cannot be made in the case of individual writers[706] Jurists were capable of arguing both in the traditional scholastic way and also in a humanist one. Franςois Hotman (1524-90) was a notable case in point. He adopted the humanist mos gallicus (although he later rejected it) but apologised that he felt constrained to follow the traditional scholastic approach in his consilia so that he could stand a chance of winning cases in court. References to Bartolus and Baldus, above all, are to be found in a wide range of sixteenth- and seventeenth-century writers on law and politics, including Jean Bodin (1530-96), Francisco Suarez (1548-1617) and Hugo Grotius (1583-1645). Despite the legal humanists’ claims, there was no way in which they supplanted their medieval predecessors. The Commentators’ ingenious solutions to the problems of empire remained a lasting contribution to the development of jurisprudential political ideas.