Theories of the Roman and Canon Lawyers

John of Salisbury was strongly influenced by the writings of the Roman and canon lawyers of his time, who were also engaged in the

-288- same herculean effort to formulate a theory of government and law which, on the one hand, would correspond to the realities of their age, but which, on the other hand, would set limits upon the arbitrary exercise of power by rulers.

The Romanists took as their field of study the classical and postclassical Roman law contained in the rediscovered works of Justinian, enriched by new concepts derived from canon law and from the newly emerging systems of feudal, urban, and royal law, as well as from theology and philosophy. The Roman texts themselves reveal little political or legal theory of any kind. What little there is consists of scattered references to reason, justice, or equity, and to the powers of the emperor and of subordinate magistrates. Occasionally, very broad principles are discussed very briefly, such as the principle that "justice is the giving to each his due," or that "what pleases the prince has the force of law." More frequently such broad references are connected with specific rules of law; for example, Gaius is quoted as saying that natural reason makes it lawful for every man to defend himself against an aggressive attack. It remained for the twelfth- and thirteenth-century students of these texts -- the glossators -- to put them together in such a way as to yield a system of general concepts concerning the location, character, and limits of political power.

The canon lawyers of the time engaged in the very same task, but they were less restricted in their sources of authority. Although they did not hesitate to use the Justinian texts, for theoretical matters they tended to look first in other places: the many canons issued by church councils in the twelfth and thirteenth centuries, the abundant legislative and judicial materials which proceeded from the papal curia at the time, the jus antiquum systematized by Gratian, the writings of Abelard, Peter Lombard, and other contemporary theologians, the writings of the church fathers, and the Old and New Testaments.

An excellent example of the application of Roman law to political theory is the way in which the greatest Romanist of the time, Azo ( 1150-1230), developed the Roman law texts concerning iurisdictio and imperium into a concept of sovereignty. ⁴⁰

The Digest states, "Jurisdictio is a very broad office: for it is able to give

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possession of goods and to transfer possession, to appoint guardians for orphans who do not have them, to assign judges to litigants." This is the closest the Roman law of Justinian came to a definition of jurisdictio. Other texts give examples of conditions under which it exists, and some indication of why it exists under those conditions. It is stated, for example, that one who judges a dispute between parties has iurisdictio only if he heads some tribunal or holds another jurisdiction. In other words, the agreement of private parties does not create iurisdictio. In another provision it is stated that one who has iurisdictio ought not to exercise it over his family or his companions. Still another text provides that a proconsul has plenissima iurisdictio ("the fullest jurisdiction") and consequently has in his province maius imperium ("greatest dominion"), suited to all purposes and exceeded only by that of the emperor. _41

Imperium ("dominion") also remains undefined in the lawbooks of Justinian. Examples of its exercise are given, in which it appears that sometimes imperium and iurisdictio may be used interchangeably and that sometimes they are to be distinguished from each other.

Confronted with this rather chaotic picture, Azo, citing his great predecessor Irnerius ( 1060-1125), the founder of Romanist legal scholarship, started by noting that the relevant provisions of the Digest fail to define iurisdictio and only give examples of it. He then offered a definition which would embrace all the examples: iurisdictio, he said, is the publicly established power and duty to pronounce judgment and establish justice. He derived his definition in part from the etymology of the work: ditio (dictio), he stated, means power (potestas) (that is, the power of utterance), and ius, iuris means right, "which is to say that iurisdictio is legitimate power." 43

Then Azo proceeded to classify in four ways the various uses of iurisdictio in Roman law. Here he played a trick with the sources -- a trick that seems wholly justified if it is assumed that the sources lay a foundation for the development of a system of general concepts and, more particularly, for a theory of political power. The trick was to classify imperium as a species of iurisdictio. Thus Azo's first division of iurisdictio is that of plenissima ("fullest") jurisdiction, which is in the prince alone, and minus plena ("less full") jurisdiction, which is in the remaining magistrates; however, some magistrates have plenissima

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jurisdiction with respect to other magistrates inferior to them.

John Perrin has said that "the significance of this [classification] cannot be overemphasized... Iurisdictio is not that which belongs to both merum and mixtum imperium. But rather these elements of command, these grades of imperium, are divisions of iurisdictio.Iurisdictio, in essence, contains them." ⁴⁴The immediate significance of the classification is threefold.

First, "pure dominion," which is the power of the sword, the power of bodily punishment, the power to take life, is limited, in Azo's theory, to those who have jurisdiction, defined as the legitimate power to pronounce judgment and establish justice. ( Azo also extended pure dominion to criminal procedure generally, including examination of suspects, arguing that pure refers to any cause in which there are no monetary claims.)

Second, it is implicit in Azo's classification that the ruler's right and power to legislate, which at a later time came to be considered the essence of sovereignty, is viewed as an aspect of his right and power to adjudicate. Indeed, the subordination of the power of the sword to the power of adjudication suggests a concept of sovereignty in which even the ruler's right and power to make war is derived from his right and power to render judgment and do justice.

Third, since the power of the sword is a species of jurisdiction, it is not necessarily true that it can only be exercised by the magistrate with the fullest jurisdiction, namely the emperor. Azo argued that it can also be exercised by magistrates with less full jurisdiction. In other words, Azo distinguished the power of the emperor from that of other rulers not on the basis of imperium but on the basis of plenissima and minus plena iurisdictio.

Involved in Azo's analysis is a recognition that the jurisdiction and dominion -- the sovereignty, as a later generation would say -- of kings, princes, heads of municipal governments, and other magistrates are not derived from the jurisdiction and dominion of the emperor. They have their own jurisdiction and dominion, which is less in quantity, so to speak, than his, but nevertheless independent of his. This is reflected analytically in the classification of various kinds of imperium as comprising one of four divisions within the genus iurisdictio, separate from the division plenissima and minus plena.

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Behind this new legal classification stood, of course, a more fundamental conception of the source of sovereignty. Azo stated that all rulers have imperium because they have iurisdictio, the right to establish law in their respective states. But what was the source of that lawmaking right? Azo answered that the source was in the corpus, the universitas, the communitas. Jurisdiction did not descend downward from the emperor but upward from the corporate community.