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"Am I, by Law, the Lord of the World?": How the Juristic Response to Frederick Barbarossa's Curiosity Helped Shape Western Constitutionalism

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Michigan Law Review Volume 92 Issue 6 1994 "Am I, By Law, the Lord of the World?": How the Juristic Response to Frederick Barbarossa's Curiosity Helped Shape Western Constitutionalism Charles J. Reid Jr. Emory University Follow this and additional works at: https://repository.law.umich.edu/mlr Part of the Comparative and Foreign Law Commons, and the Legal History Commons Recommended Citation Charles J. Reid Jr., "Am I, By Law, the Lord of the World?": How the Juristic Response to Frederick Barbarossa's Curiosity Helped Shape Western Constitutionalism, 92 MICH. L. REV. 1646 (1994). Available at: https://repository.law.umich.edu/mlr/vol92/iss6/17 This Review is brought to you for free and open access by the Michigan Law Review at University of Michigan Law School Scholarship Repository. It has been accepted for inclusion in Michigan Law Review by an authorized editor of University of Michigan Law School Scholarship Repository. For more information, please contact [email protected]. "AM I, BY LA~, THE LORD OF THE WORLD?": HOW THE JURISTIC RESPONSE TO FREDERICK BARBAROSSA'S CURIOSITY HELPED SHAPE WESTERN CONSTITUTIONALISM Charles J. Reid, Jr. * THE PRINCE AND THE LAW, 1200-1600: SOVEREIGNTY AND RIGHTS IN THE WESTERN LEGAL TRADITION. By Kenneth Pennington. Berkeley and Los Angeles: University of California Press. 1993. Pp. xiii, 335. $40. INTRODUCTION Kenneth Pennington's1 new book can fairly be called a tour de force. Pennington begins his book with a subtle and thorough exami­ nation of some of the basic elements of the constitutional order that first emerged in Western law in the twelfth and thirteenth centuries - including theories of sovereignty, power, rights, and due process - and goes on to examine some of the ways in which these concepts developed in the juristic thought of the fourteenth and fifteenth centu­ ries. He closes with a brief overview of how these concepts influenced sixteenth-century juristic thought. Acutely sensitive to questions of manuscript sources and transmission, Pennington brings his learning to bear on some traditionally important questions of constitutional his­ tory with considerable effect. But as with any truly important book, Pennington also succeeds in provoking a number of questions. A whole cluster of questions center around Pennington's use of the expression Western legal tradition. What precisely is the Western legal tradition? What is the relationship of "medieval constitutionalism" to the larger Western legal tradition? What is the significance of the constitutional history Pennington dis­ cusses for contemporary debates? This review is divided into two Parts. The first Part evaluates the main lines of Pennington's argument and situates his argument in the context of the received historiography of medieval constitutionalism. * Research Associate in Law and History, Emory University. B.A. 1978, University of Wis· consin, Milwaukee; J.D. 1982, J.C.L. 1985, Catholic University of America; M.A. 1987, Cornell. - Ed. The author would like to thank David Bederman, Harold J. Berman, Richard D. Freer, Marc Miller, and John Witte, Jr., for helpful suggestions on earlier drafts of this review. Any remaining mistakes are entirely the author's responsibility. 1. Professor of History and Law, Syracuse University. 1646 May 1994] Sovereignty, Rights, and the Western Legal Tradition 1647 This examination demonstrates that Pennington's book is one of the leading works of constitutional history of the last decade. The second Part then turns to some of the questions Pennington's use of the ex­ pression Western legal tradition prompts and briefly responds to them. I. FREDERICK BARBAROSSA'S CURIOSITY AND THE REsPONSE OF THE LAWYERS A. Setting the Scene As Harold Berman has established, a revolution broke out in 1075 - the first of the great revolutions of the West. 2 Pope Gregory VII declared the Roman Catholic Church to be independent of the empire, thereby touching off a war between Gregory and Emperor Henry IV - a conflict that persisted intermittently even after the deaths of the two antagonists and was settled only in 1122 with the Concordat of Worms. 3 This conflict occurred at a time of rapidly developing legal sophistication, and the new legal learning was put to use by both sides in the controversy. The revolution's settlement allowed room for the Church to exercise a sphere of independent jurisdiction over a number of matters, including marriages, contracts, corporations, wills and tes­ taments, and a variety of other areas. 4 The twelfth century subse­ quently witnessed the rapid development of a system of canon law to respond to these legal needs. 5 Simultaneously, the princes and lawyers of Western Europe ex­ pressed renewed interest in the Roman law of Justinian. The Digest was reintroduced to a Western readership in the late eleventh century. A school of law was organized expressly for the teaching of the Digest and the other books of Roman law that were now being mined for 2. See HAROLD J. BERMAN, LAW AND REVOLUTION: THE FORMATION OF THE WESTERN LEGAL TRADmON 94-107 (1983). 3. Id. at 98. 4. See JAMES A. BRUNDAGE, LAW, SEX, AND CHRISTIAN SOCIETY IN MEDIEVAL EUROPE 176-486 (1987) (discussing the canon law regulating marriage and sexuality); R.H. HELMHOLZ, MARRIAGE LmGATION IN MEDIEVAL ENGLAND (1974) (describing marriage litigation in Eng­ lish ecclesiastical courts in the thirteenth through fifteenth centuries); JULES ROlJSSIER, LE FONDEMENT DE L'OBLIGATION CONTRACTUELLE DANS LE DROIT CLASSIQUE DE L'EGLISE 46- 175 (1933) (discussing the development of contract doctrine in canon law); MICHAEL M. SHEEHAN, THE WILL IN MEDIEVAL ENGLAND: FROM THE CoNVERSION OF THE ANGLO­ SAXONS TO THE END OF THE THIRTEENTH CENTURY 119-230 (Pontifical Inst. of Mediaeval Studies, Studies & Texts Vol. 6, 1963) (discussing the development ofcanonistic theories ofwilJs and testaments); BRIAN TIERNEY, FOUNDATIONS OF THE CONCILIAR THEORY 106-53 (1955) (reviewing the development of canonistic corporation law); Harold J. Berman, The Religious Sources of General Contract Law: An Historical Perspective, 4 J.L. & RELIGION 103 (1986) (es­ tablishing the canonistic roots of much Western contract doctrine); R.H. Helmholz, Assumpsit and Fidei Laesio, 91 LAW Q. REv. 406 (1975) (exploring the development of contract doctrine in England and the interaction between the canon law and common Jaw). See generally BERMAN, supra note 2, at 205-54. 5. On the systematic character of the canon Jaw that emerged in the twelfth century, see BERMAN, supra note 2, at 201-04, 225-26. 1648 Michigan Law Review [Vol. 92:1646 information.6 Unlike the canon law, the Roman law was not, for the most part, the positive law of any European jurisdiction.7 Neverthe­ less, the princes and lawyers of Western Europe looked to the Roman law - as well as to the canon law - for guidance in shaping their responses to the new complexities of twelfth-century life. Constitutional law was one of the creations of the so-called Papal Revolution. The rivalry of Church and state - to use somewhat anachronistic categories8 - forced jurists to consider the proper spheres of each. Juristic reflection on the nature of corporations - most ecclesiastical and secular organizations were corporations - gave rise to theories of representation, consent, and rights.9 Consider­ ation of the nature ofjurisdiction - understood not as the competence of the judiciary but as the power of governance - gave rise to theories of obligation and legitimacy. 10 As Brian Tierney has noted, "[in] the juridical culture of the twelfth century ... Roman and canon lawyers . formed a kind of seedbed from which grew the whole tangled forest of early modern constitutional thought."11 Several generations of scholars have now researched the history of what is somewhat inaccurately called "medieval constitutionalism."12 Pennington nevertheless succeeds in contributing many original and valuable insights to this scholarship. One of the greatest contributions he makes is the result of his deep sensitivity to the vagaries of manu­ script transmission. The invention of the printing press gave rise to what can be termed a "boom" in legal publishing. Publishers hurried into print many of the important legal texts of the twelfth through fifteenth centuries in the years especially after 1500. But this rush to publish occasionally "canonized" inaccurate readings. Many modern scholars have relied on these early printed editions - a reliance some­ times betrayed by the replication of slips committed four hundred years ago. By looking behind the early printed editions, Pennington attempts to retrieve what the lawyers whose works he reviews actually said. Pennington's 'unstinting desire to recover accurate readings of the jurists pervades nearly every page of The Prince and the Law. 6. See id. at 122-27. 7. See Harold J. Berman & Charles J. Reid, Jr., Roman Law in Europe and the Jus Com­ mune: A Historical Overview with Emphasis on the New Legal Science of the Sixteenth Century, 20 SYRACUSE J. INTL. L. & CoM. (forthcoming 1994). 8. On the question of Church and state, see BRIAN TIERNEY, THE CRISIS OF CHURCH AND STATE, 1050-1300, at 33-157 (1964). 9. See TIERNEY, supra note 4, at 106-53; cf. Yves M.-J. Congar, Quod omnes tangit, ab omnibus tractari et approbari debet, 36 REVUE HISfORIQUE DE DROIT FRAN~AIS ET ETRANGER 210 (4th ser. 1958). 10. See BRIAN TIERNEY, RELIGION, LAW, AND THE GROWTH OF CONSTITUTIONAL THOUGHT, 1150-1650, at 29-53 (1982). 11. Id. at 1. 12. See infra notes 93-96 and accompanying text. May 1994] Sovereignty, Rights, and the Western Legal Tradition 1649 B. The Vocabulary of Sovereignty Although Pennington's book is richly textured and nuanced, one could state its thesis in the following two broadly phrased sentences: The twelfth and thirteenth centuries gave rise to theorizing by both canon and Roman lawyers about the nature and scope of governmen­ tal power, on the one hand, and, on the other, to speculation about the appropriate means of restraining its arbitrary exercise.
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