APPLIED CIVIL LAW: LEGISLATIVE POWER

The Digest and Code both assert the emperor's absolute power to legis­late. ‘What has pleased the prince has the force of law', states D. 1.4.1. The original context of this remark, by Ulpian, was probably a reference to the emperor's power to settle a juristic dispute, in which differing views of the law had been put forward.

On the other hand, the text of Julian (D.1.3.32) on custom, to which we have referred (chapter 2, section 10), affirmed that legislation, like custom, derives its authority from popular consent. The idea that in some sense the emperor was the delegate of the people had support from C.1.14.4 (Digna aox), a constitution of Theodosius II from 429, which states that the emperor should declare himself bound by the laws, since his authority depends on the laws and it is a mark of imperial authority to submit to the laws.

According to tradition, in the middle of the twelfth century the Emperor Frederick Barbarossa and his son Henry VI both consulted the leading civil lawyers on their powers. Frederick asked Bulgarus and Martinus whether in law he was lord of the world (dominut mundi). Bulgarus replied that in regard to private property he was not lord, but Martinus said that he was indeed lord of the world. (Martinus received Frederick's horse as a reward for his opinion, while Bulgarus got nothing.) Henry VI raised a similar question when he asked two of the Bolognese doctors, Lothair and Azo, to whom the supreme authority, imperium, belonged.

When Azo investigated the source of the iuritdictio of the higher mag­istrates, he found it in the consent of the whole community considered as a collectivity (uniaertitat). If the emperor's power came from the people through the lex Regia, popular consent must be the source of all legiti­mate authority. Earlier glossators had admitted this but argued that once the people had transferred legislative power to the emperor, they could not revoke it. Azo drew a distinction between the people as a group of individuals and as a community. The people as a group of individuals was excluded from legislative power by the lex Regia, but the people con­sidered as a uniaertitat retained legislative power. Azo's conclusion was momentous for political theory: the emperor has greater power than any individual but not than the people as a whole. In this way Azo was able to justify the de facto independence of the Italian city-states from the emperor. He could also argue that within his kingdom a king held the same power as the emperor.

Justinian's texts could thus provide support for various views on the source of legislative power. Great efforts were made to reconcile the notion that the prince was freed from the laws with the notion of Digna aox that the prince's power was limited. Increasingly rulers'

61 advisors turned to those texts which emphasised the unrestricted power of the prince to govern and to legislate for the common good, as he saw fit. The civil law was thus placed in opposition to the feudal idea that viewed the relationship of the prince and his vassals as a kind of bargain in which the ruler's powers were balanced by his duties. It is this notion of kingship which seems to survive in Bracton's statement in the thir­teenth century that in England the king was under God and the law, because the law makes the king.

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