By Kenneth Pennington. Berkeley and Los Angeles: University of California Press. 1993. Pp. xiii, 335. $40.
Kenneth Pennington's(1) new book can fairly be called a tour de force. Pennington begins his book with a subtle and thorough examination 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 centuries. 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 history 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 discusses 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. 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 expression Western legal tradition prompts and briefly responds to them.
FREDERICK BARBAROSSA'S CURIOSITY AND THE RESPONSE OF THE LAWYERS
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 testaments, and a variety of other areas.(4) The twelfth century subsequently 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 expressed 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 information.(6) Unlike the canon law, the Roman law was not, for the most part, the positive law of any European jurisdiction.(7) Nevertheless, 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 categories(8) -- 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) Consideration of the nature of jurisdiction -- 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 modem 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 manuscript 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 modem scholars have relied on these early printed editions -- a reliance sometimes 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.
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 governmental power, on the one hand, and, on the other, to speculation about the appropriate means of restraining its arbitrary exercise. Succeeding generations of jurists in the fourteenth and fifteenth centuries subsequently developed, elaborated, and adapted the theories advanced in the twelfth and thirteenth centuries; those theories deeply shaped the legal and political thought of early modem Europe.
In the process of developing this thesis, Pennington deals with other concerns as well. He challenges anachronisms that have crept into many of the questions twentieth-century historians have asked of their sources. Pennington argues, for instance, that many historians, led astray by modem debates over the divisibility or indivisibility of sovereignty, have tried to see clear jurisdictional lines between, say, the powers claimed by the emperor and those claimed by the king of France, even when the sources do not yield clear-cut answers. The result is a historiography distorted by twentieth-century concerns and wrongly focused on a struggle for national independence from imperial rule.(13) The reality, Pennington stresses, is that most of the lawyers of the twelfth through fifteenth centuries were not greatly exercised by the question of the relationship between king and emperor (p. 30). Similarly, Pennington rejects the claim made by some historians that the scope of jurisdiction claimed by the Church for the canon law prevented a proper understanding of the "state" in the twelfth through fifteenth centuries. The modem belief that the state must be the sole source of law in a given territory, Pennington asserts, led these historians astray. Instead, Pennington stresses, historians should focus on what the lawyers of the time had in mind when they spoke about the concept of statehood.(14)
Pennington himself focuses on the gradual construction of theories of power and rights from the first groping formulations of the twelfth century through the refined analyses of the fifteenth century. Patiently, incrementally, he adds to his narrative the layers of thought the jurists themselves elaborated.
Pennington commences his account at the Court of Frederick Barbarossa. An experienced and worldly thirty-year-old at the time he acceded to the German imperial throne, a veteran of the Second Crusade, and a gifted politician, Frederick was elected to the imperial office in 1152 and was crowned emperor in 1155. Frederick's empire, at its largest, extended over large parts of Germany and Italy. Frederick died of drowning in 1190, while on the Third Crusade.(15) The keeper of an elegant and refined court, Frederick often heard his rule praised in terms derived from Roman law.(16) Frederick's curiosity was thereby aroused.
Dominium and Merum Imperium
"Am I, by law, the lord of the world [dominus mundi]?" Legend has it that Frederick posed this question to Martinus and Bulgarus, two of the famous "four doctors, " while riding horseback with them.(17) Bulgarus replied that Frederick was not lord over private property, but Martinus answered cryptically that he was indeed lord (dominus). Frederick promptly dismounted and presented his horse to Martinus but gave nothing to Bulgarus. Subsequently Bulgarus complained, in an untranslatable pun, "I lost an equine because I upheld equity, which is not equitable."(18)
Pennington stresses that we cannot know exactly what Frederick meant when he posed his question to Martinus and Bulgarus. Rather, Pennington wishes to use this question and the answers it generated as a symbolic reference point and as a means of focusing on the issues of constitutional restraint on arbitrary power that he returns to throughout his book. As Pennington himself asks: "Could the prince expropriate the property of his subjects? Could the prince act arbitrarily? Did the prince's power have limits? These questions provide a framework for the problems that we shall discuss . . ." (p. 37).
Pennington begins his inquiry into the scope of the prince's power with the relationship of the prince to property. The lawyers singled out for examination the term dominium, a term they took from Roman law and understood to encompass the full power of ownership over property.(19) By the thirteenth...