The Rule of Law

The idea of the secular state, which was implicit in the Papal Revolution from its inception, and the reality of the secular state, which emerged out of the historical struggle between ecclesiastical and secular forces that constituted the Papal Revolution, were in essence the idea and the reality of a state ruled by law, a "law state" (Rechtsstaat).

⁴⁵This meant, first, that the respective heads of each body, the ecclesiastical and the secular, would introduce and maintain their own legal systems, that is, would regularly enact laws, establish judicial systems, organize government departments, and, in general, rule by law. Second, it meant that the respective heads of each body would be bound by the law which they themselves had enacted; they could change it lawfully, but until they did so they must obey it -- they must rule under law. (This was implicit in the subordination of the sovereign's legislative power to his judicial power.) It meant, third, that each jurisdiction would also be bound by the law of other jurisdictions insofar as that law was itself lawful; each state existed within a system of plural jurisdictions. This last meaning undergirded the other two meanings. If the church was to have inviolable legal rights, the state had to accept those rights as a lawful limitation upon its own supremacy. Similarly, the rights of the state constituted a lawful limitation upon the supremacy of the church. The two powers could only coexist peacefully through a shared recognition of the rule of law, its supremacy over each.

The difficulties of the concept of the supremacy of law over the state are, and were then, abundantly apparent. How can a prince have imperium (or as one would say today, how can a state have sovereignty) if his (or its) legitimate power is subordinate to the will of other sovereign rulers? That is a "contradiction" of the finest scholastic sort.

Even more important, how can one speak of the rule, or supremacy, of law within a given polity when no one has been authorized to challenge the chief officer of the polity, whether the pope within the church or the king within the kingdom?

Gratian and his successors said that the pope should be deposed if he breaks the law, but there was no one higher than the pope either to say authoritatively that he broke the law or to depose him. Similarly, royal jurists such as Bracton said that the king has a duty to obey the law, that

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the king is "under God and the law," that it is not the king that makes law but the law that makes the king; yet they also said that no judge may dispute the king's acts, that no writ can run against the king, that the king "ought" to obey his own laws but that he cannot be legally required to do so. ⁴⁶

Nevertheless, the Saxon Mirror (Sachsenspiegel), written in the early thirteenth century about the time of Bracton, stated that "a man must resist his king and his judge if he does wrong, and must hinder him in every wrong, even if he be his relative or feudal lord. And he does not thereby break his fealty." ⁴⁷ Likewise a famous legal formula of Aragon stated that subjects will obey a king only so long as he performs his duties, "and if not, not." 48

The right and duty to disobey the divinely appointed king-autocrat when he violates fundamental law was based on the belief that that fundamental law was itself divinely instituted. Popes and kings made laws, but they did so as deputies of God; not they themselves but "God is the source of all law."

Thus the concept of the rule of law was supported by the prevailing religious ideology. It was also supported by the prevailing political and economic weakness of rulers and by the pluralism of authorities and jurisdictions. Finally, the concept of the rule of law was supported by the high level of legal consciousness and legal sophistication that came to prevail throughout the West in the twelfth and thirteenth centuries.

It was well understood that the preservation of legality required not merely abstract precepts of justice, equity, conscience, and reason but also specific principles and rules such as those embodied in the English Magna Carta of 1215 and the Hungarian Golden Bull of 1222. In many types of documents such as these, including the charters of liberties given to towns and cities by kings and feudal lords, various civil, political, economic, and social rights were specified.

In Magna Carta the barons and the church exacted from the crown the commitment that no scutage or aid beyond the three recognized feudal aids would be levied by the king without the consent of the "general council of our realm" (that is, the king's tenants-in-chief), that "common pleas... shall be held in some fixed place," that "no man shall be put on trial upon an accusation unsupported by credible witnesses," that "no free man shall be taken or imprisoned or disseised or outlawed or exiled or in any way destroyed... except by the lawful judgment of his peers or the law of the land," that "to no one will we sell, to no one will we refuse or delay, right or justice," that "merchants shall have safe conduct in and out of England except in times of war and the merchants are of the enemy, in which case they and their goods will be safe if our merchants are treated the same way," that "all can freely leave and enter England except in time of war and except those who have been

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outlawed and people who are at war with us," that "only those who know the law shall be appointed as justiciars, constables, sheriffs, or bailiffs," and other such commitments. 49_

Similarly, in the Golden Bull, King Andrew II of Hungary accepted specific limitations on the power of the crown in favor of "higher and lower nobles" (that is, free men), committing himself and his successors to hold a court at a fixed time and place every year, not to "seize any noble, nor destroy him out of favor to any powerful person, unless he shall first have been summoned and convicted according to law," to "collect no tax and exact no money payments nor visit uninvited the estates, houses, or villages of nobles," to confer no offices on foreigners who come into the kingdom "without the consent of the council," to degrade, dismiss, and require restitution from "any lord-lieutenant who shall not conduct himself in accordance with the dignity of his office or shall despoil the people under his authority." Further, hereditary lordlieutenancies shall not be granted, new money shall not be issued at shorter intervals than twelve months, and if any one has been legally condemned, no protection of powerful persons shall avail to protect him from the consequences.

The Golden Bull ends with the words: "We also ordain that if We or any of Our Successors shall at any time contravene the terms of this statute, the bishops and the higher and lower nobles of Our realm, one and all, both present and future, shall by virtue thereof have the uncontrolled right in perpetuity of resistance both by word and deed without thereby incurring any charge of treason." ⁵⁰

Many centuries later, the concept of the rule of law came to be identified with the separation of the legislative, administrative, and judicial powers. 51The later concept shared two features with the earlier concept. First, power was divided, although in the earlier period the "checks and balances" had been provided chiefly by concurrent polities within the same territory rather than by concurrent branches of the same polity. Second, law was derived from, and rooted in, a reality that transcended the existing structure of political power. In the later period, that transcendent reality was found in human rights, democratic values, and other related beliefs. In the earlier period it had been found in divine and natural justice.

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Source: Berman H.J.. Law and Revolution: The Formation of the Western Legal Tradition. Cambridge, Mass. : Harvard University Press,1983. вЂ” 657 p.. 1983

The Rule of Law

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