Roman Law, Legality and John of Salisbury
Political theory within the confines of legality
Is it possible to speak of political theory in the west outside the confines of the concept of the 'rule of law' or Roman legal terminology? I would make the claim that such a thing is impossible, at least when speaking of political theory prior to modernity. Even then, we must recognize that Western political theory is deeply steeped in legalism and a legal mindset based on Roman legal terms. Karl Ludwig Von Haller made the point that western political theory has been marred with a Roman republican legal terminology ripped out of context and missapplied to the european polities, ultimately laying the intellectual foundation for the french revolution. In this way, we have to recognize the centrality of legal inquiry to understand the trajectory of western political thought.
There are many reasons why studying legal history is the best way to study political theory. One obvious reason is that jurists are usually directly implicated in the working out of policy and the attempt to resolve the major political issues of the day. This is why some of the major political theorists in the West are also jurists, like Hugo Grotius, founder of international law, or Jean Bodin, the man behind the modern concept of sovereignty. Another reason is that Western political theory usually presupposes the confines of law. The concept of law has had many different meanings, but there is always some law, whether it be God's law, natural law or the laws of reason, even rights. All political theory circles around a reference to some abstract concept of law and legality. One of, if not the most important and interesting question in Western political theory is on the relationship between rulers and the law and how to legally conceive of authority.
Naturally, we should be cognizant that the meaning of law, the rule of law and legitimacy have all changed dramatically througout the centuries. As I showed in my previous paper, The American Legal Landscape; the rule of law authorizes the rule of lawyers and judges with the structural goal of epistemic centralization and formalization, once we become cynical enough to penetrate ideological descriptions. In the medieval period their concept of what law fundamentally is was not the same. Law was connected to the idea of divine equity. It was not conceived as something human, but as something divine, ordering not only human society, but also something inscribed into the ordering of the universe. According to the medieval legal profession, this transcendent concept of law found its earthly expression and ideal model in the study of roman law.That this difference between medieval conceptions of law and modern exists should be clear upon the recognition that medieval jurists could both proclaim the rule of law and the full might of kings, something that modern thinkers would see as anathema.
Today the rule of law is understood primarily as a constraint upon executive authority. So the central question we must ask is how the relationship between authority and law was fundamentally transformed, and this will be the topic of this paper. The treament of this question will happen through a reading of John of Salisbury, the most prominent political theorist in Christendom until St. Thomas Aquinas arrived on the scene. John of Salisbury, as I will argue, embodies the entire legal revival of the 12th century and presents a distinctly medieval vision of the relationship between prince, law and the body politic, where the influence of Roman law is very apparent. But first, we must get an overview of the introduction of Roman law into Christendom and the general legal revival of the 12th century.
The reception of Roman law and the formation of a Western legal tradition
The fall of the Roman Empire in the 5th century is said to have ushered in the period known as the Dark Ages. And whilst there was certainly a great deal of chaos in the West in the aftermath of the fall of the empire, the new barbarian kingdoms settled the old lands, institutions were kept in use by new people, jurisdictions were upheld and life went on, as it always does. Nonetheless, Roman jurisprudence, a legal profession and the body of Roman law was lost with the collapse of the empire in the West. The law that emerged in the new kingdoms, was of a different character to the professional legal tradition of Rome:
"The legal rules and procedures which were applied in the various legal orders of the West in the period prior to the late eleventh and early twelfth centuries were largely undifferentiated from social custom and from political and religious institutions. No one had attempted to organize the prevailing laws and legal institutions into a distinct structure. Very little of the law was in writing. There was no professional judiciary, no professional class of lawyers, no professional legal literature. Law was not consciously systematized. It had not yet been "disembedded" from the whole social matrix of which it was a part. There was no independent, integrated, developing body of legal principles and procedures clearly differentiated from other processes of social organization and consciously articulated by a corps of persons specially trained for that task." – Harold J. Berman, Law and Revolution, The Formation of the Western Legal Tradition
As Berman points out, there was no idea of law as a distinct discipline. The laws promulgated by the Germanic kingdoms were based on custom and closely tied to the king who made them and the content of the laws tell us much about the society in which they were made:
"The earliest known legal orders prevailing among the people of northern and western Europe were mainly tribal in character. Every tribe or "stem" (stamm) had its own law […] the basic legal unit within the tribe was the household, a community of comradeship and trust based partly on kinship and partly on oaths of mutual protection and service. […] On the other hand, there were territorial legal units consisting typically of households grouped in villages, villages grouped in larger units often very loosely organized duchies or kingdoms. In the local territorial communities, the chief instrument of government and law was the public assembly ("moot", "thing") of household elders. Besides kinship and local territorial communities, there were also various kinds of lordship (feudal) bonds, often formed by households "commending" themselves to great men for protection". Harold J. Berman, Law And Revolution, The Formation of the Western Legal Tradition
This society based on kinship and blood is highly evident in the laws of the time, which are chiefly concerned with remedies for blood feuds. As such, we find in the Lex Salica Karolina from around 500 AD, compiled by King Clovis and The Liber Constitutionum Sive Lex Gundobada, known as the Burgundian code, specific remedies for violence between families, like specific fines for different kinds of mutilation. These law codes were chiefly concerned with royal control and regulation of blood feuds in a society based on clan structures, but they would also become an important backbone for the customs of these kingdoms going forwards. Noteably the Lex Salica was an important part of the Frankish and French right of succession in the later middle ages, being resurected in the succession disputes of 1316 and 1328. And so, even though these laws lost most of their positive force way before the great legal revival in the 11th and 12th centuries, they constituted a set of traditions and customs, which were important for later jurists in a legal order which put high value on custom and tradition as binding authorities.
While the West had lost the body of Roman law, a legal science and profession, the Byzantines kept the Roman legal tradition alive. Of major importance is Emperor Justinian's ordering of the complete codification of Roman law and custom. The jurist Tribonian and a comittee undertook this task, which resulted in an amalgamation of all Roman law (though chiefly consisting of law from the imperial era) into what came to be known as the Corpus Iuris Civilis, "the body of civil law", also sometimes called the Justinian code. This collection was divided in 4 parts: Codex constitutionum, digesta/pandectae, institutiones, and novellae. The codex was a collection of ordinances by emperors, the digest a collection of writings by the most prominent ancient roman jurists, the institutiones would act as guide or textbook for legal students, while the novellae contained imperial ordinances by Justinian himself. Especially the Digest would become important for the development of a legal science and profession.
The reception and study of this Corpus Iuris Civilis in the 11th century was to form the central backbone of the Western legal revival. Contemporary with the reception of roman law is the Gregorian revolution, which much of the historiography on the topic considers to be the central event in creating the condition for a legal revival and the origin of the rule of law(Møller, 2017). The Gregorian revolution and the investiture conflict resulted in a massive uptick in litigation between secular powers and the church(Brundage, 2018). The issue of the relationship between church and secular powers was the central political issue in the 11th century and the growing amount of litigation in affairs concerning the relationship between these entities created the ideal conditions for legal inquiry.
These conflicts spurred both church and state to find a common legal framework within which their quarrels could be resolved. It is no coincidence that the first university in Europe was formed at this time in Bologna, initially centering around the study of law and Roman jurisprudence. The formal study of law was (re)established seemingly in response to the political problems of the time:
"As law became important in politics and in all other parts of medieval society, schools were established to teach it. Stories circulated about how the teaching of law originated. Not suprisingly some of these tales credited rulers with encouraging the teaching of Roman law. One of the most intriguing is a report by a German cronichler, Burchard of Biberach, that Matilda, Countess of Tuscany, petitioned Irnerius to teach the books of Justinian's compilation. Whether the story is true or not it reflects an assumption of the early twelfth century that rulers were interested in fostering the study of ancient Roman law and that the knowledge of law would enhance a ruler's authority. In any case Irnerius was a major figure of the early twelfth century who taught law in Bologna, advised the Emperor Henry V (1106-1125), and served as a judge in Tuscany (Cortese 1995, 58-61; on Irnerius, see Spagnesi 1970). Legal historians generally credit him and an even more shadowy figure, Pepo, for establishing Roman law as a field of study in Bologna". – Politics in western jurisprudence in A treatise of Legal Philosophy and General Jurisprudence Vol. 7 – Kenneth Pennington
The semi-mythical figure of Irnerius, credited with establishing the study of Roman law at Bologna in 1088, was seemingly deeply involved in the legal disputes sorrounding the investiture conflict. The need for a legal framework and terminology to resolve the disputes between the church and temporal powers was filled by these new universities and the legal science and jurists emanating from them.
In the European universities, the systematic study of the Corpus Iuris Civilis begun with the most prominent expounders of Roman law being the so called glossator school. The glossators get their name from their praxis of writing comments on the text by leaving small glosses that sought to explain the text and work out its contradictions. Making the body of Roman law coherent was the main goal of the glossators as the Corpus Iuris Civilis contained laws and legal thought stretching from the twelve tables to the end of the empire, and as such, it was filled with contradictions. Noteable jurists, who played a key role in forming the study of roman law include Irnerius, the so-called four doctors of Bologna: Bulgarus, Martinus, Jacobus and Hugo De Porta, as well as Azo of Bologna and Accursius. These jurists laid the foundation for a legal science that would define the practice of law in Europe for centuries.
People from all around Europe would uproot themselves and travel to these universities to learn about law, and these same people would travel back home and bring their legal learning with them. This is part of the formation of what is called the European Ius Commune. The legal scholars knew that Roman law had no positive force in the various European kingdoms and polities, but they strongly believed that Roman law was the law. They believed the ius commune to hold universal force as a pan-christian common law from which legal thought could be drawn. Roman law was the ideal law and acted as a model for all other types of legislation and as all the various lawyers around Europe were educated in the study of Roman law as the fundamental body of law (Bellomo, 1995).
A conflict and distinction was therefore drawn between this Ius Commune and the Ius Proprium. The ius proprium is the name given to the local laws, custom and legislation that had actual force in the European kingdoms and polities. In terms of actual adjudication the various royal statutes, laws, customs and traditions had primacy against the ius commune, or Roman law, which could only be drawn from when all other options were exhausted. So while the ius commune constituted a pan-christian common law and conditioned the way jurists thought about law and the terminology in use, it took a backseat to the local laws and could not officially be anything else than a model and source of inspiration. The conflict could also be put in the terms of a fight between reason and custom. Gratian asserted in his Decretum that reason triumps over custom, and so the Ius Commune was either seen as an attack on local customs by intellectual speculation or as Divine reason replacing the errors of local polities. The conflict led to pejoratives being given to Roman law as "the professorial law" or "learned law", clearly giving the impression that it was merely an intellectual pursuit with no practical use.
Downplaying its influence would be a mistake though, as these jurists who had the ius commune in mind would take this legal science into the various royal administrations of Europe. This is particularly significant because in the 12 and 13th centuries, there is a massive amount of new legislation being crafted in the European kingdoms. Harold J. Berman writes on the great law kings of this time:
"In the various kingdoms of Europe the common law of the king and of the king's courts gradually replaced most of the disparate features of tribal, local, and regional law within the territory. In England, for example, it replaced the law of Wessex, the law of Mercia, and the Danelaw, into which English law was till divided at the beginning of the twelfth century. In Sicily, the laws of the Greeks, the Arabs, the Lombards, and the Normans were subordinated to a common law by Roger II, who ruled from 1112 to 1154. Roger was the first of the great lawmaking kings of the twelfth century. He was followed in the second half of the twelfth century by Henry II of England (1154-1189), Frederick Barbarossa of Germany (1152-1190), Philip Augustus of France (1180-1223), and Count Philip of Flanders (1169-1190), and in the thirteenth century by Frederick II of Sicily and Germany (1208-1250), by Henry III (1216-1272) and Edward I (1272-1307) of England, by Louis IX of France (1226-1270), and by Ferdinand III (1217-1252) and Alfonso X (1252-1284) of Castile and Léon." – Harold J. Berman, Law and Revolution, The formation of the western legal tradition.
Noteable laws under these monarchs and others are Roger II of Sicily's Assizes de Ariano from 1140, the first major law code in medieval history. Ranulf De Glanvill's Tractatus de legibus et consuetudinibus regni anglie (1187-1189), written under king Henry II of England, which was highly concerned with legal procedure and introduced the writ into English law, and was the foundation of the English common law. In Germany, the Sachsenspiegel, "Saxon Mirror", written by Eike von Repgow between (1220-1235), a codification of Saxon customary law, which would be in use for many centuries. In France, the Coutumes de Beauvaisis from 1283, a voluminous work on the customs of Beauvasis, written by Philippe de Beaumanoir.
Simultaneously with the growth of royal and secular legislation, the church underwent a similar process of codification and legislation where church customs and papal decretals were ordered into a coherent body of canon law. Around the time of the Gregorian revolution, the church started to systematize the various canons, texts and statements issued by popes and bishops into a coherent whole. An important event in this process is Pope Gregory VII's assertion of the papal right of legislation as Berman writes:
"Gregory VII asserted for the first time the power of the pope to "create new laws in accordance with the needs of the times". The new laws, called decretals, issued by him and his successors were not viewed simply as incremental additions to the preexisting canons but as something new. Thus a revolutionary periodization was introduced into the history of ecclesiastical law, and it became possible to summarize the laws on the basis of that periodization. This summarizing movement culminated in 1140 in the great treatise of Gratian, which was immediately recognized as both a definitive summary of what was called the jus antiquum and an integration of it with what was called the jus novum. The phrases "old law" and "new law", which are usually attributed to the period just after Gratian, were actually implicit in his division of legal sources of canon law into two groups, the (old) conciliar canons and the (new) papal decretals." Harold J. Berman, Law and Revolution, The formation of the western legal tradition.
The culmination of canon law in the summary of Gratian from 1140, the Concordia discordantium canonum, commonly known as the Decretum, was a result of the complete systematization of canon law. Gratian himself drew from many other canon law codes, like Anselm of Lucca's from 1083 and the Panormia of Ivo of Chartres from 1095 and of course the papal decretals. Gratians decretum was succeeded by Liber Extra from Pope Gregory IX in 1234, which was to be the primary source of canon law in the church until the 20th century.
The historical backdrop of the investiture controversy for the legal revival of the 12th century would also invariably lead to a clash of jurisdictions, which seems to be a defining feature of medieval law. The attempt to put into legal terms the conflict between secular and ecclesiastical only pushed the question of their relationship ahead, but it did mean that the conflict found its expression through jurisdictional battles. We see in the constitutions of Clarendon promulgated by King Henry II of England the claim in article 1 that:
"If a controversy arise between laymen, or between laymen and clerks, or between clerks concerning patronage and presentation of churches, it shall be treated or concluded in the court of the lord king." The Constitutions of Clarendon – 1164
The constitutions of Clarendon where chiefly concerned with resolving any questions about the legal relationship between church and secular powers. The king claimed that ecclesiastics where also his subjects and therefore should also be subject to trial at royal courts. The church did not believe this, and wanted complete legal immunity for priests. A priest should only be tried in an ecclesiastical court on canon law principles. This was a major dispute on the issue of royal and ecclesiastical jurisdiction and these constitutions led to the dispute between Henry II and Archbishop Thomas Becket, who was later martyred in Canterbury Cathedral.
Besides the major clash between royal courts and ecclesiastical courts, various other jurisdictions emerged at a lower level. Local lords developed more sophisticated forms of legal adjudication and more layers of feudal law and jurisdictions emerged.
Around this time, city-states began to emerge and created their own laws free from royal control and a general Lex Mercatoria (merchant law) emerged, which was a sort of European wide law regulating the conduct of commerce. As such, legal refuge could be found in various courts that all claimed jurisdiction against each other. What was accepted was the reverence paid to the law in all its manifestations and the idea that law should rule. The discourse on this rule of law came from the studies of Roman law and the legal science developed out of it.
Through this juridification of Christendom, Roman law became the dominant framework through which politics and law was understood, though in practice coexisting with local traditions and customs. The Roman legal terminology conditioned the thought of the political thinkers who would emerge in the wake of this legal revival. As mentioned; the jurists firmly believed that Roman law encompassed all law in an abstract sense and that it had universal force. This transcendent law could be studied and applied universally, and this general legalistic view is seen very well in the political thinker John of Salisbury.
The legalism of John of Salisbury
John of Salisbury, born between 1115-1120 at Old Sarum, has been recognized as the most prominent political theorist of his time, and perhaps the first systematic one of the middle ages. John was deeply embedded in the conflict between secular powers and the church in the Angevin Empire led by Henry II. In 1147 John joined the court of Archbishop Theobald of Canterbury, and became his personal secretary and adviser, playing an important role in English ecclesiastical politics. In the entourage of the Archbishop he became acquinted with many of the greatest minds and political figures of his time and build a huge personal network including the Bolognese jurist Vacarius, Nicholas Breakspear, later Pope Adrian IV, and Thomas Becket who was infamously martyred.
John of Salisbury's main two works, Policraticus and metalogicon were written in exile from 1156-1159 after having lost favour with king Henry II because of his role in the negotiations with the papacy for the right to invade Ireland, in which John had received this grant on the condition that it would be supervised by the papacy. Safe to say that Henry II did not like this, and John was forced into exile. When Thomas Becket succeeded Theobald as Archbishop of Canterbury in 1162, John became a supporter of Becket, which naturally resulted in another exile, from which he returned in 1171, after the martyrdom of Becket. In 1176, he was appointed as Bishop of Chartres, where he died in 1180(Giraud, Mews, 2014).
As a scholar John had a diverse set of influences. John was a man of his times, a period that C.H. Haskins has popularized as the 12th century Renaissance, in which a general revival of the latin classics and poetry, Roman jurisprudence, Greek philosophy and the first universities as well as the crusades. The reception of latin litterature is a prime feature in John's writings. He frequently cites Cicero and Plutarch and takes many examples from Roman history(O'Daily, 2018). But John was also a biblical scholar. He relied heavily on the authority of scripture from which he derives great inspiration for most of his worldview. John has been said to have been a sceptical fideist(Grellard, 2014). He was familiar with the emerging scholasticism of his time, but he saw great limitations in human reason and firmly believed that certain things could only be proven by the authority of scripture and faith, and that all reason was based on certain principles which had to be taken by faith.
Another central influence on John was the revival of jurisprudence and his acquintance with Vacarius. John showed great knowledge of the law, even though he was not formally a jurist, but his time at the court of Archbishop Theobald and his own time as a bishop would have made him very familiar with the legal process of ecclesiastical courts and canon law. He also allegedly read Gratians Decretum from 1140 and also had a copy of Justinian's code(Sassier, 2014). John's works were widely dissemenated in his aftertime, and he continued to be a relevant thinker in Europe throughout the middle ages(Lachaud, 2014).
John of Salisbury – Policraticus
Policraticus – De Nugis Curialium et Uestigiis Philosophorum, "On the Frivolities of Courtiers and the Footprints of Philosophers." This is John's main work which, as the title suggests, centers on the ruler and his court. Despite being presented as a systematic work of political theory, the book is often considered to be chaotic and ecclectic without what we would usually consider to be an argument properly presented. John oscillates between condemning the decadency of court life with amusing passages like this:
"there is no mention made in the law of actors and mimes, clowns and prostitutes, pimps and similar prodigal men whom the prince ought rather to exterminate than to encourage; not only are all these abominations to be excluded from the court of the prince, but they are to be eliminated from the people of God". John of Salisbury, Policraticus, Book IV.
In describing the difference between the prince and the tyrant, with occasional excurses into biblical history, statements like these and the contentious issue of the relationship between prince and tyrant is probably what made him write about his own work to his friend Peter of Celle that:
"it is a garrulous piece of work, and such as will scarce find a single friend at court. But i should not like it to make me an enemy to the courtiers." letter 111
Despite its chaotic structure there is a thematic unity to the text, which is the distinction between prince and tyrant, a vital distinction to John's concept of the rule of law.
The legality of the Prince and the Ilegality of the Tyrant
John is very clear that the main thing that differentiates the prince from the tyrant is the rule of law:
"There is wholly or mainly this difference between tyrant and the prince: that the latter is obedient to law, and rules his people by a will that places itself at their service, and administers rewards and burdens within the republic under the guidance of law in a way favourable to the vindication of his eminent post, so that he proceeds before others to the extent that, while individuals merely look after individual affairs, princes are concerned with the burdens of the entire community. Hence, there is deservedly conferred on him power over all his subjects, in order that he may be sufficient in himself to seek out and bring about the utility of each and all, and that he may arrange the optimal condition of the human republic, so that everyone is a member of the others. […] Certainly this is proper because nothing is useful to the people except that which fulfills the needs of the prince, since his will should never be found opposed to justice" – Book IV
Here we find the idea that the prince has full power over his subjects, and that he is "sufficient in himself" on the condition that his will conforms to justice and the he is "obedient to the law". Not ruling by law is tyranny, and this is what leads John to argue for the right of tyrannicide:
"the tyrant, as the image of depravity, is for the most part even to be killed. The origin of tyranny is iniquity and it sprouts forth from the poisonous and pernicious root of evil and its tree is to be cut down by an axe anywhere it grows." – Book VIII
The tyrant should be killed as he is the anthesis of the prince. The prince has all his power from God, and through the power of God he enforces the law:
"For all power is from the Lord God, and is with Him always, and is His forever. Whatever the prince can do, therefore, is from God, so that power does not depart from God, but it is used as a substitute for His hand, making all things learn His justice and mercy. 'Whoever therefore resists power, resists what is ordained by God, in whose power is the conferral of authority and at whose will it may be removed from them or limited. For it is not even the ruler's own power when his will is harsh to his subjects, but a divine dispensation at His good will to punish or train subjects. […] who ought not to venerate what is instituted by God for the punishment of wrongdoers, for the approval of the truly good, and for the enforcement of devoted service to the laws?" – Book IV
Salisbury posits a transcendent law that it is the duty of the prince to enforce. Law is, for John, far removed from any instrumental conception where law is a means to an end; the law is the end. Thus, the law has a cosmic scale and is ultimately Divine, which John makes apparent when talking about what the law actually is:
"Equity (as the experts in law assert) is a matter of what is appropriate, according to which reason equalises the whole and seeks just equality in matters of inequality; what is equitable to all is what grants to each person that which is his own. Its interpreter is law, inasmuch as law makes known the will of equity and justice. And thus, Chrysippus asserted that law has power over all divine and human affairs, for which reason it presides over all good and all evil and is ruler and guide of things as well as of men. Papinian, a man of the greatest experience in matters of jurisprudence, and Demosthenes, the influential orator, would seem to support this and to subject all men to its obedience because all law is a sort of discovery and gift from God, the teaching of the wise, the corrective to excesses of wilfulness, the harmony of the city, and the banishment of all crime. It is proper for all who dwell in the community of political affairs to live according to it. All are, for this reason, obligated to be restrained by the necessity of observing the laws, unless perhaps someone imagines that he is granted the license of iniquity". - Book IV
Law is what interprets equity, which is essentially the good, the law is the good, but it is also the order of the universe and a gift from God. Returning to the idea that the enforcement of this law is the main distinction between prince and tyrant, it is clear that John exemplifies a strong legalistic worldview, wherein everything is subject to the law. The law is not a specific law or constitution, but it is the entire ordering of the universe and is congruent with the will of God. The prince has full might, but his power is in the service of the law as an abstract entity, which is an end in itself. This legalistic worldview can be broken down into many differing points of origin, John references classical literature, the Bible and the academic lawyers of his time. However, the key facet of John's worldview is his casting of the relationship between the prince and the law in the contemporary jurisprudence of his time. To explain this we will need an excursus into the issue of the seeming incongruence of the Digna Vox and Princeps legibus solutus est in the body of Roman law.
Salisbury on the Prince and the Law
Whether or not the prince was beneath the law was a contested issue at John's time, which in legal terms arose from a set of contradictory passages from the code of Justinian. Squaring the many contradictory passages from the Roman law compiled on the order of Justinian in the 6th century, was one of the primary backbones of the legal revival of the 12th century, and the business of ordering these was the central goal of the glossators in the 12th century. As such, John of Salisbury was part of a larger Pan-European debate on the matter. Yves Sassier has treated John of Salisbury's stance on the matter in detail. Sassier makes John's jurisprudence and the 12th century glossators apparent when he states that:
"His own knowledge of Justinian sources allows him, at the end of Chapter 1 of Book 4, to cite the great Roman text proclaiming the supremacy of the law over the prince, the Digna vox constitution promulgated in 429 by the emperors Theodosius II and Valentinian III." Yves Sassier – John of Salisbury and Law, Companion to John of Salisbury
This is a central part of the Roman legal corpus, which stated that the authority of the prince was derived from and dependent on the authority of the law and that the prince could do nothing which departed from justice and equity. But on the other hand, John also knew of opposing texts in the Roman legal corpus, namely Ulpian's statements from the Digest, where he states that: "Princeps Legibus Solutus Est," "the prince is not bound by laws" and "Quod Principi Placuit Legis Habet Vigorem", "what the prince has decided has the force of law". These two irreconcilable statements had been sought to be resolved by the legal glossators, a solution and argument that John knew, which stated that an important distinction should be drawn between the necessary obligation imposed upon the people to obey the law, and the obligation imposed on the prince to obey the law by his free will. John partly adopts this argument as Sassier argues:
"John would seek to demonstrate that the voluntas of the prince is only apparent, not the equivalent of "whim," and that it is in reality strictly subject to the supreme principle of equity, comparable to the will of God: as he writes at the end of his quotation from Digna Vox, the prince can be assured "that nothing is permitted him that departs from aequitas iustitiae."
John took this route because he knew that the words of Ulpian, which seemingly granted complete arbitrariness to the ruler, would be abused by jurists in the household of certain kings, especially as we are in the times of the investiture conflict and the words of Ulpian nicely alligns with wishes of secular powers, while the Digna Vox, suited the ecclesiastical position very well, a position where we find John of Salisbury. If we return back to the idea that John posits, which says that the willingness of the prince to submit to the law is not a matter of mere whim, and that he is strictly subject to the principle of equity, and that he cannot depart from "aequitas iustitiae", then what does John believe this principle of supreme equity to be? To continue to quote Sassier:
"John opens the following chapter by giving a series of definitions designed to explain the sense of this expression "equity of justice", and the constraint it imposes on the prince. The "equity of justice" is none other than divine law disseminating iustitia Dei to humanity. Cuius (Dei) iustitia iustitia in aeuum est et lex eius aequitas: "The justice of God is justice for eternity, and his law is equity". John's words join with those of Martinus in identifying aequitas with God. But Martinus also qualified it as fons iustitiae, while the canonist Gratian called it mater iustitiae. No expression of this kind is to be found in John of Salisbury, who, as we were able to note in the very first pages of this study, immediately gives another definition of aequitas, no doubt inspired by the Summa Trecensis and the glossators, but to which he also applies the classic definition of justice: tribuens unicuique quod suum est. John thus departs from the glossators, whose discourse on equity and justice sought to draw a pronounced distinction: making the former a primordial concept, an objective reality inscribed in the world's natural order and originating from the divine will alone, and the latter a reality concerned with the sphere of human activity, deriving from the intervention of a human will."
John identifies the equity of justice with divine law flowing from the justice of God, thus identifying equity with God, a point in which he agrees with the eminent jurist Martinus, one of the four doctors of Bologna. But Martinus also talked off equity as the font of justice, while Gratian calls it the mother of justice, thus making it a causal connection. John simply sticks to the identification of equity with God, while also applying the classical idea of justice, tribuens uniciuique quod suum est (often translated as "to each his own"). The distinction drawn by the learned jurists of his time between equity as "an objective reality inscribed in the world's natural order and originating from the divine will alone" and justice as a "reality concerned with the sphere of human activity, deriving from the intervention of a human will", is disolved by John because he desires to completely absolve the law of any connection to human will. Still continuing with Sassier:
"In John's eyes, law as a gift of God can only be dogma sapientium, and compositio civitatis: it depends on the truth revealed to those who possess sapientia, who formulate it, and, in a way, relay it to other humans; it "assembles" the city, and "puts [it] in order" (the main meanings of componere, from which compositio derives). It is precisely these characteristics, and this desire to fuse together divine and human law, or at the very least, make the second the direct extension of the first, that is found at the end of the Policraticus, in the definition in Book 8 already evoked above: law is the "gift of God [divine law], image of divine will [human law], guarantor of salvation […], the union and consolidation of people." In short, John takes the Digest's definitions as his starting point, but changes their wording in order to liberate the law in its fundamental aspect from any voluntarist intervention, to free it from the autonomous will of a human legislator; the voluntarist vision gives way to a theological vision of law's origin, in which the human mediator – the one who necessarily translates divine aequitas (the definition in Book 8 makes law the forma aequitatis) into words – is reduced to the role of telling to the people, in the manner of Moses the initial "legislator," or Gideon the arbiter of the law's application, the rule whose auctor is none other than God. The two definitions, of an equity that subsumes justice and of the law interpreter of divine will, serve the same end here: to assert that the will of the human legislator is a captive will, totally subjugated to this objective principle of equity, coming directly from God."
This is a profoundly theological vision of law as something that is not only divine in origin and then revealed to humanity, but also inscribed into the ordering of the universe. Thus, all law is a matter of revelation, in the style of Moses. Furthermore, it "assembles the city" and puts in it order, by way of those who posses the wisdom to formulate and relay it to other people. This of course has important consequences for the way John understands lawyers and priests as well as the general ordering of society. For this purpose, John utilizes a corporeal metaphor to describe the political.
The political body
John is certainly not the first writer to employ the body as a metaphor for political organization, but his is probably of a more systematic nature as opposed to those preceding him. John has a very specific set of functions, which he applies to the body and its real world equivalent:
"that which institutes and moulds the practice of religion in us and which transmits the worship of God (not the 'gods' of which Plutarch speaks) acquires the position of the soul in the body of the republic. Indeed, those who direct the practice of religion ought to be esteemed and venerated like the soul in the body. For who disputes that the sanctified ministers of God are his vicars? Besides, just as the soul has rulership of the whole body so those who are called prefects of religion direct the whole body. […] The position of the head in the republic is occupied, however, by a prince subject only to God and to those who act in His place on earth, inasmuch as in the human body the head is stimulated and ruled by the soul. The place of the heart is occupied by the senate, from which proceeds the beginning of good and bad works. The duties of the ears, eyes and mouth are claimed by the judges and governors of provinces. The hands coincide with officials and soldiers. Those who always assist the prince are comparable to the flanks. Treasurers and record keepers […] resemble the shape of the stomach and intestines; these, if they accumulate with great avidity and tenaciously preserve their accumulation, engender innumerable and incurable diseases so that their infection threatens to ruin the whole body. Furthermore, the feet coincide with peasants perpetually bound to the soil, for whom it is all the more necessary that the head take precautions, in that they more often meet with accidents while they walk on earth in bodily subservience; and those who erect, sustain and move forward the mass of the whole body are justly owed shelter and support." Book V
The soul of the body is the church and its priests, while the head is the prince. The prince is subject only to God and his vicars on earth and this of course shows us John's vision for the relationship between church and prince, where he takes the ecclesiastical position. The heart is the senate, a term which we should probably read as parliament, gathering or "ting", a meeting of the people and the king for talks concerning the state of the realm. Judges and governors are the eyes, ears and mouth of the political body and as such they speak the law of the head and soul. Naturally, a healthy stomach equals a good economy and the peasants are the feet carrying the body. This is John's vision for political organization, which we should now bring back to his broader legal and theological vision.
The legal-theological vision of the republic
To synthesize all this, we must return to John's leading idea, the difference between prince and tyrant, which is a difference understood on the basis of the rule of law. The prince rules by law and the tyrant doesn't. The prince submits himself to the law while the tyrant sees himself as above the law. The law is something inscribed into the ordering of the universe, it is divine and a gift from God, it is understood through revelation and it is something to be discovered. In the body politic, the head, which is the prince, naturally submits himself to the guidance of the soul, the church. Judges are the mouth and speak the law of the head. The idea of law that John presents where it is something to be discovered by people who posess knowledge of the legal science is very emblematic of the general legalistic view of the world in medieval thought, it was also closely connected to the legal revival. John says himself of judges that:
"I have seen nothing more miserable than judges ignorant of the science of law and devoid of a good will […] a judge must be an extremely religious person and one who hates all iniquity more than death itself". Book V
When John says that the prince should rule by law and submit to the law, he is obviously thinking about the law of God as the revealed moral teachings of scripture and tradition, but also the "law" as the abstract entity which is discovered and studied by jurists. This more general law is also divine, and requires special training in a legal science to relay and so the prince must submit himself to the guidance of lawyers in legal matters and priests in theological. Both theology and law requires special training, and so John has presented us with an idea of the rule of law which is connected with the general formation of a legal profession in Europe, which has entered the various royal households and staffed the royal administrations and bureacracies of medieval Europe.
At the same time the familiar dispute between the church and prince is resolved on John's own ecclesiastical premises by the idea that the prince submits to the guidance of the church and the theology which is administered by the church, this would hardly be a controversial statement in the abstract, but its concrete application was of course the source of great dispute at the time. Still, when speaking of John's conception of the rule of law, there is no idea of an independent judiciary overruling the prince when he oversteps the boundaries of the law. The prince has full might, but must submit to the law on account of his own free will. The prince must follow the law as it is, but he also has the power to change and abrogate the law at his discretion, as long as it conforms to divine equity, which is to say that he should conform to the will of God. Naturally, understanding the will of God falls within the power of the church. Understanding the law is the area of the jurists, whom the prince should heed, but he is not subject to a judge's interpretation of the law, only to the law in itself on account of his own free will.
What differentiates the prince from the tyrant is then that the prince is willing to submit to the law as it is, and follow the legal advice of the jurists, while the tyrant offends the law and disregards all legal learning. The law that John posits is wildly different from any voluntaristic conception of law, while he says that it is divine in origin as what interprets divine equity, and so there is a natural discrepancy beteween this conception of the rule of law and modern notions of the rule of law. According to John, the jurist grounds the law in the divine, in order to fulfill the will of God, and only constrain the King to follow the will of God. When law is connected to divinity and is seen as divine equity, the ordering of the world and the will of God, it cannot take on this modern characteristic.
On divine ground, law cannot be understood through human voluntarism or instrumentality, but must be seen as the end of the political in itself. Law is understood holistically in this way as being connected to God. We must understand the inadequacy of applying this concept to modern, secular and technocratic politics. The rule of law has lost its foundation in the divine and this is why it takes on such a profane character in modern politics, where it essentially means the rule of lawyers and judges with the goal of epistemic centralization. The necessary institutions needed to actualize and interpret the divine will, the church, has been left severely weakened by modernity. This is a central problem in the development of the concept of the rule of law.
The medievals understood that the rule of law being attached to the divine will naturally needed institutional means for interpreting this will, the church, and that seeing the rule of law outside this framework would leave the concept hollow. Because law broadly speaking has this divine aspect, John sees no problem with granting the jurists a special status. The jurists, however, were also capable of working in the interest of the medieval kings. Naturally, John's conception of the rule of law granted considerable power to the church in constraining royal authority, but because of the ambiguity of Roman law, many kings were able to use jurists to their own favour. The kings were able to appeal to the jurists wish to free themselves from theological oversight, a process which had been underway since the formalization of law as a university discipline distinct from theology. This is why the legal science and jurists ended up playing such a key role in the development of royal institutions in the 12th-century. What fundamentally happened was the emergence of a legal profession, which could play both the royal and ecclesiastical side, utilizing a divinely conceptualized idea of the rule of law and appealing to roman law as the ideal model of law. This divine grounding and the reverence payed to the law would still persist even after the medieval period.
Liberals like John Locke still appealed to the divine for some kind of grounding for the law and rights, but he does so in a highly protestantized fashion with no formal institutions being able to relay the will of God. This is why the rule of law has become so insincere. Within a modern secularised framework, the law is only capable of being a set of instrumental rules managing society, and fundamentally utilized by a legal profession to assert its own centrality. We still ascribe some kind of transcendent quality to the law as being fundamentally true. In the end though, we can only defend modern law on instrumental grounds by appealing to the need for order, due procedure etc. The rule of law is a fundamentally hollow concept without a solid grounding in the divine and with no institutional means for theological interpretation.
Through the appeal to Roman law that became the new basis for legal inquiry, outside the theological a whole host of problems arose. This is why I mentioned the work of Karl Ludwig Von Haller in the introduction. Haller correctly indentified the centrality of Roman law in western political thought, with a brilliant hindsight already in the 19th Century. He argued that the study of Roman law and its missapplication had led to the French Revolution. He argued this on the basis that Roman legal terms were derived from a historical situation wholly alien to the political organization of the premodern and modern West. The body of Roman law made use of such concepts as civil society, citizens, the public and the republic; concepts that formed the basis of the revolutionary liberal concept of the political.
These Roman concepts were already used by John of Salisbury back in the 12th Century as seen above. Naturally, the elaboration of concepts like res publica would lead jurists to assert their own position within the royal institutions and lead to a more modern understanding of the rule of law, as an institutional constraint on executive authority. In freeing the jurists from the church, the kings were also able to free themselves from church oversight by appealing to their own idea of the rule of law. The jurists however, would then utilize this concept of the rule of law against the king, prosecuting the absolutism of the premodern/early modern European monarchies with Roman legal terminology. This trajectory of jurists asserting themselves against executive authority is still visible today in the institutional battles between the supreme court and the president in the United States.
Of course, the inability of anyone to coherently describe what the "rule of law" even means now that it has been secularized suggests that only a cynical attitude can make sense of the contemporary jurisprudential dynamic. The liberal democratic tradition's attempt to claim the rule of law as uniquely their possession is a view that only historical ignorance can support. The concept of the rule of law has in reality degenerated with the Enlightenment's replacement of divine notions of sovereignty and natural law with appeals to a general will. In claiming to "interpret" this general will, the contemporary judiciary has liberated itself to effectively legislate from the bench.
Harold J. Berman, Law and Revolution, The formation of the western legal tradition
John of Salisbury, Policraticus, trans. Cary J. Nedermann
Miller, Butler, Brooke, The Letters of John of Salisbury, Vol. One, The Early Letters(1153-1161)
Grellard, Lachaud, A Companion to John of Salisbury
Yves Sassier, John of Salisbury and Law
Frédérique Lachaud, The Medieval Afterlife of the Policraticus
Giraud, Mews, John of Salisbury and the Schools of the 12th century
Christophe Grellard, John of Salisbury and Theology
Padovani, Stein, Lobban, A Treatise of Legal Philosophy and General Jurisprudence, Vol. 7, The Jurists' Philosophy of Law from Rome to the Seventeenth Century
James A. Brundage, The Medieval Origins of the Legal Profession
Irene O'Daily, John of Salisbury and the Medieval Roman Renaissance
Charles Homer Haskins, The Renaissance of the Twelfth Century
Manlio Bellomo, The Common Legal Past of Europe, 1000-1800
J. Møller, Medieval origins of the rule of law: The Gregorian Reforms as Critical Juncture? Hague Journal on the Rule of Law