The Power and the Law –Conte
By Emanuele Conte | Published on October 25, 2019
Around 1200, the lawyers were looking for a balance between the two authorities: the one of the lawmakers and the one of the existing law. As it was usual for medieval science, they ordered arguments in dialectical opposition, to back both, the authority of the “dead voice” of the law and the one of the living lawmaker.
The first major witness of this effort was a rather obscure Italian judge from Lucca, named Rolandus. He was not known to the classic legal historiography because he never taught at Bologna, not he wrote any gloss. But he compiled the first complete summa to the Tres Libri, the books 10–12 of Justinian’s Code, which are mainly devoted to public law. The work is offered to the Emperor Henry VI, the son of Barbarossa, who became also king of Sicily in 1194, but died shortly after. Here, Rolandus offers a picture of a very balanced relationship between the ruler and the law. His vision is foundational for our understanding of a “medieval constitutionalism”, based on a “the rule of law” avant la lettre. It defines the emperor as a member of the legal order which must use its power in accordance with the laws. For example, the emperor should not impose unreasonable taxes, and citizens have the right to resist the unjust demands of the tax collectors. He may not seize the property of his subjects without just cause and without compensation. In short, he must be first and foremost the defender of the law.
This effort of balancing power and law was possible thanks to a fundamental principle of the medieval constitutionalism: the continuity between the Roman Empire and the medieval empire, which justified the adoption of the Roman law in medieval Europe. The idea that the medieval Empire assumed Justinian’s law as its regulatory system has been the focus of two traditional and opposite interpretations. On the one hand, the classic interpretation of Gibbon saw in Justinian’s law a powerful weapon of oppression of peoples who were artificially subjected to a despotic law imposed from above. Many historians have followed this interpretation until today, but other scholars have considered that the adoption of the Roman law by the Empire was a major boost to the legal civilization of medieval Europe.
The seminar is aimed at showing that the recovery of the ancient texts of the Roman law have not been a purely cultural happening but have played a substantial role in the historical intercourse. At the age of scholasticism, the authoritative sources were powerful political weapons. They were used dialectically, to attack and to defend: as powerful opposite boosts, they allowed the construction of a vast knowledge aimed at “ordering the world”. Erwin Panofsky has masterfully drawn the parallelism between this abstract construction and the very real construction of the gothic cathedrals. That is why every historian should consider the real presence and the transformative force of the scholastic doctrines while dealing with the late Middle Ages and the Early Modern.
As gothic architecture, also medieval scholasticism had an historical existence. This seminar is an attempt to show that we better do not consider it as pure theological or legal speculation, because it played a very effective part in the concrete historical happenings.