Introduction

1 Research Issues

A widow’s plea, addressed to the Roman emperor Trajan, that her case should be heard by her competent judge is a familiar theme in European literature and art, thanks to the 10th canto of the Purgatorio in the Divine Comedy.1 In the case of the broken jug, as elaborated by Heinrich von Kleist in the epony mous comedy, Mrs. Marthe demands justice to be done by the competent judge in Utrecht.2 Both literary works, written centuries apart from different backgrounds, point to the same core element of justice: Justice has not only be done but seen to be done. Justice and its perceptibility is what one seeks from the competent judge. A comparative history of judicial competences and of the functionality of ordinary – that is legally prescribed – competences is the essence of this monograph. Ordinary judicial competence is not simply a technical term for legal experts.3 Rather, it touches on the basic European ‘belief’ – still nowadays the essential architecture of the treaties establishing the European Union – that law creates order (ordo). The medieval canon ordinabiliter habitum combines the Christian adaptation of the virtuous Platonic and Aristotelian concep tions of justice with the specific rationality of the reason-based explanation of

1 W. Pleister and W. Schild (eds.), Recht und Gerechtigkeit im Spiegel der europäischen Kunst (DuMont 1988) 157–158 (hereafter Pleister and Schild, Recht und Gerechtigkeit im Spiegel der europäischen Kunst). 2 Heinrich von Kleist’s Der zerbrochene Krug (sometimes translated as The Broken Pitcher) is a parody of what Kleist saw as the weaknesses of the judicial system. In an increasingly farci cal trial, Judge Adam oversees the investigation as to who broke the titular jug, all the while attempting to conceal the fact that he himself is guilty. Heinrich von Kleist, Der zerbrochene Krug (Reclam 1957) 78. 3 Though the struggle with extraordinary courts is the main theme of the history leading to the guarantees of the legally competent judge (gesetzlicher Richter, juge naturel), the term ‘ordinary court’ is not wholly sufficient to express that the said guarantee not only refers to the institution of the court, but also to the special aspect of justice that the judgements are governed by law rather than personal discretion. Therefore, ‘ordinary court’ is used in the sense of the ‘right court’ or the ‘proper court.’ The same is true of ‘ordinary jurisdiction.’ As the historic sources use this notion to express the opposite of ad hoc established extraordi nary institutions with dependent officers deciding cases by discretion, it is used here in the sense of predictable judicative power. Competence is used to delimit or differentiate judica tive power from executive power or to express concurrence between various ordinary courts like venues of proceeding or between inner court units like chambers.

2 Introduction faith that originated in the First Epistle of St. John.4 The first amounted to the cardinal standard of justice next to wisdom, prudence, and fortitude, while the second enabled a rational explanation for God’s existence in five arguments (quinque viae, five ways). The latter was pioneered by Thomas Aquinas, acting as the ‘agent’ of the antique masterminds in Christian vestments. His Scriptum super libros Sententiarum5 and his Summa Theologiae6 forged religious truths into rational arguments and thereby set the basis for the rise of ordo within the jurisdictional powerhouse of the medieval papacy. The summa’s overwhelm ing influence – even the Divine Comedy is held to be ‘the summa in verse’7 – laid the foundations for a logos-based Roman Catholicism, the rationality of the medieval canon law, and emerging self-adjudicating clerical judges. In this way, the Roman Catholic Church appropriated justice to establish the legiti macy of its rule as a legal system, exemplified by the papal rule by jurisdiction that emerged in the twelfth and thirteenth centuries. The result of this was that a ‘fair attitude’ became the decisive and rationally determinable factor for judicial justice seen to be done.8 ‘Fair attitude’ is not left to ethics, but deter mined via legal categories. Such a legal approach to fairness has come to greater prominence at various historical turning points, demonstrating that the core element of justice is a very specific idea of law. In Germany, recent history has offered challenges in this regard. The postwar legal revision of National Socialist injustices and the post- 1989 legal recalibration of acts committed under the auspices of the German

4 ‘In the beginning was the Word, and the Word was with God, and the Word was God.’ Thomas Aquinas equated the Word with logos, which is to say reason. As the Word was both with God and was God, Thomas Aquinas concluded that reason was the highest, godliest function of mankind. The attachment of this conclusion to the opening words of St. John’s Epistle em phasizes his definition of God being the initial mover. 5 Written between 1252 and 1256, Thomas Aquinas’ Commentary on Peter Lombard’s sen tences (Sententiae, 1150–1158) cites Aristotle 2304 times. The 8th distinction of the first book explains the essence of God’s existence by borrowing from Aristotle’s ousia-idea: ‘And so God is,’ as Augustine says ‘without doubt a substance, or, if this is a better term, an essence, which the Greeks call “ousia”. For just as wisdom was named from being wise, and knowledge was named from knowing, so too is essence named “esse”–being or to be.’ 6 Written between 1265 and 1274, Thomas Aquinas’ work was also known as the Summa Theologica, or simply the Summa. Besides Aristotle and Plato, Aquinas also cites Christian, Muslim, Hebrew, and Pagan sources, including Augustine of Hippo, Avicenna, Averroes, Al-Ghazali, Boethius, John of Damascus, Paul the Apostle, Dionysius the Areohagite, Maimonides, Anselm, Cicero, and Eriugena. 7 W.F.X.R. Freeman, ‘Sources of Dante’s Inspiration,’ (1921) 40 The Fordham Monthly 76: ‘Dante’s theology is Thomistic, the Divine Comedy the Summa in verse.’ 8 In his article ‘Statutory Lawlessness and Supra-Statutory Law’ (1946), Radbruch introduces the formula, known as ‘the Radbruch Formula,’ which denies extremely unjust law to be law. Gustav Radbruch, ‘Statutory Lawlessness and Supra-Statutory Law (1946),’ trans. Bonnie Litchewski Paulson and Stanley L Paulson, (2006) 26 Oxford Journal of Legal Studies 7.