Home > Uncategorized > The Prince and The law 1200-1600

The Prince and The law 1200-1600

Pennington traces the legal developments in the whole of continental Europe and England. His end point is Bodin’s text in which Bodin apparently limits the absolutism of the king. Pennington begins in the 1100s and shows how even early on there were limits on the Prince but that they also developed substantially in the coming centuries. He pursues several different threads of legal schools and how they developed into 1500 to reach Bodin.

This text is quite legal  and drops a lot of olden names. I found it quite difficult to sit through because he basically makes the same point. There was juridical dispute over the rights of the prince, whether he was the lord of the world or whether he had certain barriers. And while legally the edge tipped to the latter, the king was never really absolute. Argues that Europe had a common legal basis which today’s sovereignty precludes. Perhaps the most interesting part is his epilogue on the problems of unifying Europe under state limited judiciary of law. Europe held a common legal sensibility.

One thing I did note is that law often struggled to catch up to real events. I guess that happens when the pope is the representative of god on earth. In general it was a confirmation of my already weak belief in the power of legislation in bringing change to events/. Perhaps one could say that legal developments influenced norms but  I didn’t really see it here.

1160 Frederick I, The first Holy Roman Emperor stated that he would follow the written law. His counsels argue that he was in fact the  “lord of the world”  and he was not forced to be limited by laws. He was sovereign and legislator  unfettered by law (16).

Even though Frederick was lord of the world, in 1200s this generally meant in the context of the times that he was also limited in certain ways.

What was the relationship of the prince to those beneath him?  The prince had primacy over all things “dominus mundi”. (20)

In the 12th century Natural law was used to defend private property. Does the king own things that other individuals own?

The anecdote of Martinus and Bulgarus, in which each one answered differently, but the one tha said the prince was ruler of all things got a horse.

So basically in 12th century subjects had right to private property except if the prince had cause, pressed by necessity or if he was acting in public good.

By 1250 the process of court hearings was entitled to men in such disagreements. Point is in 1200 the jurists did not focus on the question of the prince’s authority or his jurisdiction, but on the power of the king related to his subjects. (30)

There were three main interpretations (31) Every king is emperor in his kingdom. Kingdom is independent but the prince can exercise authority in it. King is independent but has no authority.

(36*) The authority of the prince was various and differed with time and situation. The title of prince was granted to kings, magistrates, and arbitrators and it could bind or free up its holder. The universal authority of the prince in the beginning of 1200 was not an issue. The point is that the story of Martinus and Bulgarus was the root which was used to ultimately lead to Bodin asking : “What are the limits of princely power” “Can the prince expropriate property of his subjects”  “Can the prince act arbitrarily”

There are a number of sources of law at the early medieval period. Natural law ( God), Canon law ( church custom), divine law(bible and pope), Roman law, Customary law, Civil law, and positive law, Law of nations.

1215: will of prince  is the source of legal power. The source of law is what is important not its logic. Pope is a divine authority and in absence of an emperor he is the prince. The pope could dispense with canon law but not divine law. (57) This slowly spread to England, it took the form that the prince could dispense with positive law if he please. We could say this was the peak of princely power. (what were the social causes of the extreme reconfiguration of law in prince?)

For Hostiensis the pope had the power to even overturn divine law if it did not lead to mortal sin. Pope was sovereign and religious ruler.

But though this is the general interpetation it was not uncontested. The fact tah the prince was called absolute didn’t mean that he was in practice, legal practice. (Are juritst directing the powers of kings or are they simply  justifying  it?)

The pardox that emerges from absolute power is that the emperor doesn’t know if his successors are bound by his acts. SO the solution was to say the prince stuck to old laws by his own will but he didn’t  have to. Jurists had to marry together divine and roman law and this led to cumbersome language.

Canonists were used to dealing with change because laws cnaged often there whereas roman law was constant and that tradition had more difficulty dealing with change.

By 1300s the will of the prince was interpreted as residing in common good, but it wasn’t popular yet. (Bodin would repeat the claim later) (88) So legalists were treading dangerous territory in which the prince was being unfettered in the wake of the collapse of Rome. But the king wasn’t  able  to overturn natural law.

These trends weren’t isolated to France and Italy but swept all of Europe, I guess emanating from the pope and spreading outward.

Kings were seen as princes, but they were not like the pope they were fettered by natural and divine law.

135: It was impossible to force the king to do anything. Jurists were more like exhaltations to the king. The kling could derogate law but not abrogate it.

Today no jurist would hold that positive law of state or national law is trumped by international law beyond sovereign boundaries. Maybe because of world wars. Jurists argued that there were no transcendental laws on prince but there were transcendental norms put by god.

in 1200-1300 due process developed as necessary limitation on prince’s exercise of power. Once natural laws were established the jurusts set about negotiating kings power with respect to them. end of 13th century jurists agreed taht rights protected citizens from arbitrary king (124)

Except that the king could be arbitrary by his will. but will was defined as public good.

From here move to contracts as being inviolable by king. So if the king was in a feudal contract with his subjects he couldn’t break it. (125)

(132) on judicial process. Ordeal was not irrational, it was sparsely used and conformed to thought of rationality at times. Move from ordeal wasn’t a move from irrational to rational but a move to limit princely power.

Ordeal was called irrational because it relied on itnerference of god in human affairs but in reality there was much negotiation and discretion for judge.

Reason and not divinity become central.

(133) Why did ordeal give way to trial by reason?

1. Society became more sophisticated and rational

2. Perception of what was rational changed, in larger towns  it was inefficient. So Europe developd.

3. 4th lateran council banned ordeal and it was till seen as fair and rational.

4. Development of secular amd ecclestical procedures in court could provide alternative.

Due procedure was fully formed  by 13th century. Because due process was seen as gaining authority from Adam and eve being tried by God even though he knew they were guilty.

Note: Whayt determined which judicial branch won out? Was it internal logic or outside interference? Why adam and eve not cain and abel?

Ordo Judiciary or due process was accepted in Italy but was sent by letter from north till 1300. Due process also came to push out into roman-canonical and custom laws.

(142) Ordo used for natural law. And slowly it became a requirement for all cases.

Content of due process:

  • Presumption of innocence
  • Defendant must be properly cited
  • Opportunity to present evidence to defend self
  • Right to counsel
  • Right to remain silent
  • Proof burden on prosecutor


(158) doubts prevalent use of torture.

(181) Prince not lord of the world especially after fragmentation/. Prince lord of his subjects. Since ro,man people only bestowed authroity in the emperor and he was gone and roman people are no united so no more prince over all.

(183*) dispute between Robert of Naples and Henry 7 showed how developed due process had become, Even pope sided on side of Robert. Due process was expanded outside of natural law into larger political arena.

Even the notoriuous crimes could not be shortened. Could only shorten some things but not crucial things. pope listed them later. (199) Everyone agreed that henry had no right on his side. (he also died)

Ch 6: When will of prince was tied to general good, he could no longer dispose of natural or positive law without cause.

(202) Separation of prince as a public figure binding to previous arrangements like peace treatise bersus prince as private figure. 1400

(208) territory and people under prince have independent juridical existence from him. today we would call it a state but had no name for it back then.

(225/241) with medici even the pope was bound by due process.

(227)1450 prince also banned from tampering with positive law. Public good lay outside prince’s authority and public good could hold against prince’s will. (Baldus) Public utility versus public good which dictated order in polity.

(was this cementing of public law a limit on society as well? This just  deals with prince)

(267*) conclusion that two centuries leading  to Bodin.

(279, 289*)Modern sovereignty cannot imagine laws from outside of the state like natural law and this cements state. Human rights should not be linked to sovereignty.

Class Notes:

Hermeneutics: the study of written texts and their interpretation. (I thought it was study of new terms or proliferation of new terms)

Every interpretation is coherent with respect to something, no text stands alone.

Hermeneutic truth is not about truth and falsity, but consistency. The context of truth always has its own object. It is the applicability to certain contexts which determines use of hermeneutics. (on analyzing old texts like Pennington is doing)

The legitimacy of law is not from legal text. Europe was in a transition taking power from pope giving to king with legalists trying to limit  both.  1100 crusade undermined the pope it shifted the identity of christianity  from the pope to this communal sense. As political power  escaped the pope 1100-1600 we have political struggle to see where divine law has effect and where it doesn’t. On several spheres there is a simultaneous narrowing of papal and princely power. The issue of space becomes tangible, as well as private property.

International history till recently was all about hermeneutics and this is in that tradition. It moved to legal realism which was critical of legal history and legal sociology which later emerged in reaction to realism. The coherency of law evolved in the texts.

Western Europe is wherever there is Catholicism (legal jurisdiction and scope of the study)

The prince challenged the pope on grounds that the people can challenge the prince on.

On the legacy of the ordeal and christian legal concepts of justics.

We had 2 courts eclestical and temporal. One was eternal for the soul and the other for the body. Just as god could intervene in thge ordeals the prince could intervene in secular courts. So by limiting the law the prince was limited and god was taken out of the space of justice.

The logic behind the ordeal was that exceptional sins (outrageous sins) required extreme legal punishment in order to redeem the soul by the church. Today we still have this in humanitarian intervention. Certain crimes are so exceptional that any punishment is valid for their correction. So Gaddafi risking civilians allows Nato to unleash hell on cities in which qaddafi rules. Both these place are Libyan and both had Libyan citizens, but Qaddafi and his supporters stopped being Lybian and required extra measures to bring into accountability to mete out justice. Qaddafi’s excessive punishment  required excessive retaliation.

What is an excessive crime today? in th 17th century ordeal was given secualr bend. Reason became dominant over passionm therefore if one establishes interest one is rational and under normal law, but for those who commit crime out of passion or unreasonably, they are seen as extreme. Obviously reason is determined by the Western powers for Gaddafi. Inchristianity retribution and justice go hand in hand.

Hariri killing for example is seen as irrational, so Hariri is on the good guys side, he is rational he has interests and therefore all legal measures of retribution are required. In Libya the people in Sirte are no longer Libyan, it is easy to politically justify killig them, but we must “defend” the libyan people who are now not in Tripoli or Sirte.

ANC didn’t have this logic in south africa otherwise war would never have ended and we would have Zimbabwe. They said this was the worst part of christianity in  that it requires those who perform excessive crime require excessive punishment for their soul to be cleansed. Theology and secularism meet in a weird way where law and punishment is justified against irrational acts. Notorious criminals require notorious punishment in religion. In secularism evil becomes irrationalism.

Is this just christianity? Or is it a human need for retribution?

Prof: Law has inherent value in that once you make a law no matter what the situation it gains moral power. Even if it isn’t followed it still has moral benefit. Laws aren’t to be followed but establish moral rules.

Difference in terms.

Dominion versus Domimnium,

Dominion: domain over which you have authority. Applies to states but used by empires. Canada is a British Dominion. Property suggest occupation and permanence in relationto property. The relationship is politically differentiated from land.

Dominium is not state like coverage. There is real but not political relationship here.

Italian Statu =/= State =/= French estate =/= British Estate

Political relationship/ modern/ Social relationship/ Land above all

Statu: Person of patrimony, maedival conception of dominion which is basis of war. Personal.

State is less Statu.  It is a set of buerueacratic, military, financial, and symbolic arrangement that have to do with the management of space. It is impersonal.  States need a central figure who is not necessarily teh sovereign. It needs a set of laws which are the expresion of its will. Provides particular structure for public and private social organiation.

In estate and statu there is no idea of private life that needs organizing.

Pennington traces where the public versus private space emrges in laws limiting prince as a person versus prince as a position.

Marx replaced the prince with the Bourgeois in his state idea.

Pope Innocent gave power back to papacy (although weakened)

Crime of the state is not the same as teh crime of sovereign. Ex: you can sue george Bush as sovereign but  not as the state. Not the way it was in the past. The two are the same. In embassies, the ambassador represents the sovereign and the embassy the  state.

A certain degree of order in the west depends on the fact tat the state/sovereign represents all of us, even if defeated in election.


Note: In many ways the problems faced by the prince are the same problems faced by modern populations in “democratic” states. The fact that subsequent groups of people may reverse any laws which are made today is something that we also have to deal with. How can we ensure stability from government to government if not through law.

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