Greece, Rome, and the Bill of Rights (10 page)

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Authors: Susan Ford Wiltshire

Tags: #Political Science, #General, #History, #Law, #Reference, #Civil Rights, #test

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with notions, ideas, and quite specific linguistic expressions which had been taken from the Roman constitution and law. It was the language of the cultured and educated classes of the late fourth century. This infusion of Roman law and jurisprudence into the Bible succeeded all the more easily, as the Old Testament in particular was thoroughly permeated with legalism."

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The second text was the
Corpus iuris civilis
, which provided for the Middle Ages the civic infrastructure of Roman law. Roman law supported the prevailing belief in a single universal empire of all Christendom. The conception of the Christian empire included both the political and the cultural unity behind the Church, and Rome became the center of the empire in which Christ's vicars had established the Church as the center of the universal ideal. "This 'cultural idea of Rome,'" says Hans Julius Wolff, "even more than the political idea of Rome, created in medieval thinkers, imbued with reverence for established authority, the belief that the law of the Roman Empire, as stated in the imperial codification, was the revelation of legal truth and therefore above all the customs by which men actually lived."
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Roman law thus assumed its central place in the Middle Ages for both political and cultural reasons.
In about the eleventh centuryafter a period of several centuries in which rules were simplified, Roman ways were merged with tribal customs, and complexities were increasingly omittedlegal studies in Europe shifted remarkably. During this period several changes occurred in European civilization: the power of the papacy was greatly enlarged under Pope Gregory VII (10201085); feudalism became concentrated into a complete system; the Norman states achieved efficient administration and political power; and the intellectual project of the medieval Scholastics was firmly in place under the leadership of Anselm (10331109), the archbishop of Canterbury. In the context of this new prosperity and stability, a revival of interest in jurisprudence grew up in Provence and in the north Italian areas of Lombardy, Ravenna, and Bologna.
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By far the most important of these schools was that

 

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at Bologna in northern Italy. It owed its origins to the leadership of the Marchioness Matilda, who, as a staunch supporter of Pope Gregory VII, wanted to establish at Bologna a center of legal studies favorable to the pope that could counterbalance the Imperialistic school at Ravenna supporting the divine right of kings. Under Matilda's sponsorship, Irnerius studied law in Rome and then returned in about 1088 to Bologna to open his school and institute Roman law as the first academic discipline in Europe.

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Thousands of students from all over Europe eventually came to study at Bologna, which became the nerve center for the dissemination of Roman law throughout the Continent and beyond. One student, Vacarius, went to England to teach at Canterbury and Oxford.

Meanwhile at Ravenna, Peter Crassus was exploiting the potential of Roman law for defending the divine power of kings. With his tract, In
Defence of King Henry
, he introduced Roman law into the center of political controversy, a place it would keep until after the Reformation. Crassus used the
Code
as well as the
Digest
to justify the king's legal powers within his domain.
45
The revival of legal studies was consistent with the scholastic method, which emphasized organization, logic, and dialectical methods. Medieval lawyers had a great share in this resurrection of order over the fragmentation of knowledge that had occurred in the so-called Dark Ages, but their work had a different cast about it because it dealt with a major text and engaged in a practical task. Paul Vinogradoff explains:
While their fellows in the school of Divinity operated on Scripture and Canonic tradition, and the masters of arts struggled, by the help of distorted versions of Aristotle, with the rudiments of metaphysics, politics, and natural science, the lawyers exercised their dialectical acumen on a material really worthy of the name, namely, on the contents of the
Corpus Juris
.... For the doctors of the new study the books of Justinian were sacred books, the sources of authority from which all deductions must proceed. It is not to be wondered that they were not content

 

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with casual fragments, but made researches into its component elements, and considered it as a whole.

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The reception of the Roman legal system had a special appeal to ambitious emperors, princes, and even clerics because it placed the state above all interests, both public and private. Roman law did not admit the feudal intermixture of public and private purposes, and therefore supported with great efficiency a descending theory of government, whether secular or sacred. It also supported economic development with its elaboration of contracts and property rights. As common law grew, Roman jurisprudence became a powerful force in the courts as well as in the schools. In all these ways Roman law in the Middle Ages represents the power of ideas to organize social and political life.
The Individual as Subject
Roman law undergirded the biblical basis of the Middle Ages, tending to focus not on the individual but on the corporate body as a whole. The idea of the rule of law within the Church was bolstered by the notion that law was the "soul of the body politic." Although the Bible did not set forth anything like a complete system, it did point toward monarchy, a descending form of government, the idea of the individual as subject, the necessity of obedience to the external rulers, and a great respect for designated offices within the body.
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In such a system, the only competent authority is the ruler or emperorthe
dominus mundi
, master of the world. The ruler represents God on earth, serving as God's vice-regent and vested with virtually unlimited powers derived from above. Those powers were personal, inalienable, and nontransferable.
Ullmann points out that there are differences as well as similarities between the monarchic system of the papacy and monarchy as practiced in the Roman Empire. Both represent the wholeness doctrine, however, and both see the individual as a subject rather than as a citizen with

 

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autonomous rights. Although the doctrines might take different forms within the two structures, the papacy borrowed on a large scale from Roman institutions.

48
For example, the papacy borrowed from the Roman emperors the letter known as a ''rescript" or "decretal letter" to exercise its binding authority. These letters constituted church law, now vested with all the authority of Roman law.
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Ordinary Christians had no share in making the policies by which they were governed. Nor did they have jurisdictional rights over property. Since all property came from God, and God is the source of the ruler's authority, the ruler had the authority to dispose of the individual's property. In the twelfth century the civilian Martinus stated this thesis explicitly, declaring that the expression "everything is understood to be in the prince's power" meant that the ruler was the owner of all the property of his subjects and could dispose of it at will. This was his power of
dominium
by virtue of his being God's vice-regent on earth.
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Nor had there developed at this point any idea of human equality in the civic sphere. Pope Gregory the Great (c. 540604) granted that by nature all people are equal, but insisted at the same time that there is some sort of "occult dispensation" by which some people because of their merits rank higher than others: "All men are by nature equal.... Nature created all men equal, but by a varying order of their merits, an occult dispensation ranked some behind others."
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Even in the later Middle Ages the doctrine that members of the society by virtue of their membership had equal standing in the public realm was unknown.
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There
was
a theory of inalienable rights in the Middle Ages, but it belonged to corporations, not to individuals. During the thirteenth century Roman and canon lawyers developed the idea that kingdoms had to have certain guaranteed rights if they were to survive. At the same time, they began to think of the king not as a
dominus
in an absolute sense, but as a guardian of the responsibilities entrusted to him.
53

 

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Medieval theorists thus attached the idea of inalienable rights to the common public good rather than to individuals.
In the later Middle Ages legal specialists also attempted to develop a theory of privileges for women, children, and clerics through a system of renunciations.
Renuntio
means the surrender of one's legal privileges in return for special protection. Drawing on the organic theory of society, legal scholars developed the doctrine that the protection of women and children as well as of the Church was required because women, children, and Church were prey to their more sophisticated environment. Later, emperors and kings were added to the protection list since they too fulfill a unique role. In every case, the criterion for a legal renunciation was in one vital respect the same: inalienable rights were those that touched the public interest.

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In summary, the individual had not yet emerged in the medieval world. This is due to a host of factors, but chief among them is the primacy of Roman law with its emphasis on the group rather than on the individual in both Church and society. Paradoxically, the influence of Roman law eventually would prepare the way for the secularization of government and the new place of the individual within it. By the end of the twelfth century, Western Europe was in the grip of Roman principles of government supplied by Roman law, having undergone what one observer calls a "bloodless revolution" such as Europe had not known before.
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Roman law would become both a source of inspiration and a means of accommodation to changebut not yet.
Natural law, too, contained the seeds of the potentially revolutionary idea that the "laws of nature and of Nature's God" might someday be taken to mean that individuals as well as corporations are endowed with rights. The legal renaissance of eleventh-century Italy raised the possibility that there might be a superior code capable of abrogating human laws. This could not happen as long as the Church Universal remained all-powerful, but when the

 

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