Social Science Files research exhibit.
Category type 7 rank over status society.
A book exhibit continued..
Gaines Post, Studies in Medieval Legal Thought: Public Law and the State, 1100-1322, Princeton University Press 1964
Introduction (continued)
… We have noted how, in the legal and political theories of the thirteenth century, the Roman emphasis on common or public utility was repeated, how the public utility was always placed … above private interests. This public utility, when asserted of Empire, Church, or kingdom, was the status for which the public law existed. Therefore … they asserted that the public law cannot be changed by private agreements.
For Papinian [died 212, Roman jurist, attorney general] had said … "Public law cannot be changed by the contracts of private individuals"; and … "A private agreement does not repeal (derogat) public law". The Glossa ordinaria to Papinian's statement offers the explanation that a private agreement is invalid against that part of public law which pertains both to the public authority and to the public utility, as in the case of the fiscus, or which relates to the public utility and safety of all in common…
… It follows in part from this that when for the public welfare, the defence of the realm, a king asked for an extraordinary tax to meet the necessity, special privileges, immunities, and liberties, such as exemptions even of churches from taxation, all of which amounted to private contracts between king and individuals and corporations, were not valid. They must yield to the superior right of the public welfare, of the status regni [state of the kingdom]. And all exempt persons and churches, if the government could demonstrate the existence of real necessity, must contribute their share of the subsidy. …
… In fact, it is, along with the Roman theory that the public law embraces the supervision of churches and the clergy, the essential basis of the increasingly frequent assertions from 1250 on … that the State is all embracing and is therefore in special cases above the Church. Thus if the Canon law maintained that the Church, with papal consent, contributed voluntarily to the necessities of a kingdom and was in theory still independent of the royal authority, Boniface VIII [died 1303, Bishop of Rome] discovered in 1295-1296 that he had to consent to the extraordinary taxation of the English and French clergy by Edward I and Philip IV. Ironically, each of these monarchs claimed that his necessity was a just war of defense against the other.
There was, then, a theory of public law in the twelfth and thirteenth centuries. Cicero, Roman jurisconsults, St. Augustine, and St. Thomas Aquinas all agreed that the common good or utility was superior to private rights and interests; that governments existed to maintain the public welfare or status of the Republic. Emphasizing passages in the Corpus Iuris Civilis, the legists and canonists concluded that the public law pertained to the status or public and common welfare and to the government necessary to achieve and maintain it.
In other words, the raison d'etre of a king or prince was the preservation of the status, state, of the Respublica or kingdom. Indeed, by the ius publicum it belonged to the prerogative of the prince, said a canonist of the late twelfth century, to protect the Republic and provide it with sacra, priests, and magistrates. The prerogative, then, was the public authority of the ruler; it was, we shall see, the public "estate royal", the status regis, which was essential to the preservation of the status regni.
Although it was chiefly the subject of public law, the status or public and common welfare of the State was normally coincident with the private welfare of all the members of the State.
For normally the ruler was preserving the common welfare of all—and the common welfare was essential to the public welfare of the realm as a whole—when he maintained law and justice and protected private rights in his courts.
[FOOTNOTE/S: Utilitas communis and utilitas publico often meant the same thing. Here I make the distinction that was made by the legists when they sometimes held that communis refers to the welfare of the individual members, publico, to the welfare of the corporate body of the State as a whole and considered apart from the individual members. But they were not consistent; see Chapter VIII note 24]
[MGH: the FOOTNOTE 24 mentioned directly above is provided here] … it should be remarked that some glossators tried to explain that the utilitas publica was the status of the whole Republic or State as a corporate entity, universitas, including the head and the members; that the utilitas communis was the common welfare of the members viewed individually. In a fashion the public welfare was the subject primarily of public law, the common welfare the subject of the private law that was made for private rights. But since private law depended on the authority of the government for its enforcement, it was subordinate to public law; it was "public by authority," private in its application to the private rights and welfare of individuals. Hence, the common welfare of the individual members of the State depended on the public welfare of the State and its government, else private law and rights could not exist. No matter—the glossators could be inconsistent, and frequently public and common welfare were used without distinction, although the public looked more to the State as a whole than to the members viewed either individually or collectively. In the French of English royal documents commun profit stands for public and common welfare alike, and for status regni et populi.]
Normally, indeed, the king and the prerogative were subordinate to the private law of the land, even though the private law, receiving its validity from the right of the king to enforce it, was public by authority. In emergencies, however, when the welfare and safety of realm and people were endangered, the public law was superior to private law. In times of dire emergency the public welfare of the community as a whole was a public right that was above all private rights, liberties, and privileges.
As the status of the realm, it was all-embracing and superior to the status either of the ruler or of any of his subjects, individual or corporate.
The status Reipublicae (regni), therefore, belonged definitely to public law, as did the prerogative of the king, which was essentially the right and duty to administer, judge, and legislate for the common and public welfare.
If, then, there was a concept of public law, was it accompanied by a theory of the State? We cannot answer this question without asking another question: were the status, or public welfare, the public law, and the right of the government to assure the status Reipublicae, above that law which in medieval theory was presumed to be sovereign?
For in the modern sense the State is sometimes above the law of the land, above private law; and a concept of the State could hardly exist in the Middle Ages if the law was absolutely sovereign.
The answer, again, is that in the emergency of a danger that threatened the safety of all, the ruler had a superior right to take such action as would ensure the public welfare or safety, that is, maintain the status or state of the realm. This emergency was a case of necessity—usually, as I have had occasion to say above, a just war of defense.
Now the case of necessity … was asserted by Machiavelli as a part of his theory of the State: the State is above all; and the prince, to assure the noble end of the State, has the right to use any means to meet the necessity and preserve the State. Necessity is … reason of State. But it had its medieval background … in the maxim, "necessity knows no law", in the late fourteenth century… along with public utility, in the time of Frederick II.
Actually it goes back farther … A pseudo-Isidorian canon in Gratian uses the very expression, "quoniam necessitas non habet legem"; decretists and decretalists [12th and 13th century interpreters of canon i.e. church law] from the late twelfth century on state the maxim and in their glosses explain its meaning in connection with the equitable interpretation of the law.
[WIKI: Pseudo-Isidore is the conventional name for the unknown Carolingian-era author (or authors) behind an extensive corpus of influential forgeries.]
For example, the necessity of hunger, says one, excuses theft; poverty, says another, knows no law; and the law ends, says a glossator, when necessity begins.
Azo [Azo of Bologna 1150–1230] in his Brocardica discusses the rule and gives many citations pro and con to [Justinian] Code and Digest … where we find that it is lawful to kill a thief in the night (… noted by St. Augustine [died 430] and discussed by the canonists) because "natural reason" permits one to defend oneself against danger, Accursius [died 1263, Italian jurist] gives complete approval.
Here, "Necessity knows no law" was a principle of private law. But because of the theory of the just war, that is, the right of the kingdom to defend itself against the aggressor (St. Augustine stated it, as did the scholastic philosophers), the case of necessity became a principle of public law in the thirteenth century; the equivalent of "just cause", "evident utility", and the common welfare, it was perforce connected with the preservation of the status regni. From the twelfth century on, the kings of France and England appealed to necessity as the justification for demanding extraordinary taxes. As we have seen, the Church had already recognized the validity of necessity in the lay taxation of the clergy.
No wonder, then, that in the late thirteenth century French lawyers … were asserting that in a case of necessity the defence of the kingdom and all its members was a superior right of the status regni; and that if "what touched all must be approved of all", the king had the right to compel all, even the clergy, to consent to measures taken to meet the danger.
At the same time, the situation of "international wars", necessity, public welfare, and the rise of powerful monarchies broke down the corporate hierarchy of communities within the Empire.
Each great kingdom, like England or France, by the middle of the thirteenth century was independent of the Empire in theory and practice alike. And at the end of the century each was independent of the Church—and even above the Church, except in purely spiritual matters. [see Ch. X]
When, therefore, a king stated that a great danger, emergency, or necessity had arisen that touched king and kingdom, the status regis et regni, and the common welfare and safety, he was reflecting the terminology and theory developed by the legists and canonists.
At this point we again perceive a conscious, intelligent theory of public law. The public law was that law which pertained to the public and common welfare of the kingdom; and when the common welfare or safety was threatened, the public law was above the private. In this sense necessity was a part of the public law, and thus "necessity knew no private law". In cases of necessity, to be sure, the public law was still closely related to private law, since all interested parties had the right to represent their rights before the government. Nonetheless, added to the traditional rights of the crown, the use of reason of State, the "reason of the public welfare" and the "reason of necessity" made the royal prerogative superior to the private right of consent.
Does all this imply a theory of the State? My conclusion is that it does. Although normally status meant the condition or standing of individuals, classes, or regions, in connection with the public law it meant the common welfare and public utility of the whole community of the kingdom.
A tautology, indeed, was involved in this meaning, for the status was the public welfare and the Respublica alike. It was what would be called, in seventeenth-century England, the commonweal, the Commonwealth, or the State of the Commonwealth. In French terms it was both the commun profit and the chose publique.
Not yet, in the thirteenth century, was the "state of the realm" completely personified as the highest juridical entity.
But Respublica, Regnum, and Civitas had become public corporate bodies which by the fiction of law could act and could be defended. Naturally, no juristic person whether public or private can do or suffer anything. Kings and governments, however, already acted in the name of the Realm, the State as a whole; and the State had become something that was above and different from the individual collectivity of all the members, including the king as head.
If the status regni (lestat du roialme in the Statute of York, 1322) still meant the public welfare of the Realm, the Realm was the State, the public welfare of which must be maintained. Since the public welfare was called status, and was inseparable from the public interest—the substance and end of the Realm itself—gradually status came to be the word used not only for the utilitas publiea and the indispensable public authority of the royal government, but also for the abstract community of the Realm.
Regnum became Status, the Realm the State. It is interesting that we still speak of the "state of the Republic," the "state of the nation," and of the State.
On the foundation of the two laws and of the rise of feudal monarchies, the theory, and some practice, of public law and the State thus arose in the twelfth and thirteenth centuries. Private rights and privileges remained powerful and enjoyed a recrudescence in localism and privileged orders in the fourteenth century and later. At times, in periods of war and civil dissension, they weakened the public authority of kings and threatened the very survival of the State.
But the ideas and ideal of the State and public order, of a public and constitutional law, were constantly at hand to remind statesmen of their right to reconstitute the State.
[FOOTNOTE: Naturally I cannot attempt to outline the history of the failures of the public order of the State and of the public authority of the king in the fourteenth and fifteenth centuries. At times, in France for example, king and realm meant little except in the continuity of the ideas and ideal of the public law symbolized by the crown. As late as the eighteenth century, local and individual privileges and local resistance to the commands of the central government made the State weak. … To return to the fourteenth century, in France, after the time of Philip IV, particularly in the period of the disasters of the Hundred Years' War and the Black Death, there was far less of a State than in the thirteenth century. Plena potestas, quod omnes tangit, and status regni apparently no longer manifested the power as well as the theoretical right of the king to obtain more than haphazard and sporadic consent, chiefly in local assemblies, to extraordinary taxes. In England the situation was different, but even there the legal thought I have investigated needs study in relation to the political events. …]
[END OF ‘INTRODUCTION’]
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