The Philosopher in Early Modern Europe

The persona of the jurist has a rich normative history, particularly in stories of God as the judge or the judge as God. Lowering our sights to the human forum, however, brings into view an attribute of the judicial persona – impartiality in adjudication – that is less a divine gift than an ethical capacity, laboriously acquired and unevenly distributed. To describe the history of the judicial persona, however, we need to consider a further dimension: the neutrality of the entire legal system within which that persona works. For its exercise, the office of judge presumes a jurisdiction, that is, a delimited ambit of adjudication that is inseparable from a definite historical scene and political setting.

In an early modern scene scarred by confessional conflict, territorial state-building relied on two essential juridical activities: legislation and adjudication. Temporal jurisdictions emerged as boundaries were drawn between state and church, between civil laws and the powers of the papacy. Legal officers – jurists and judges – were at the epicentre of profound disputes over where to draw the boundaries, as territorial states sought to separate their administration from trans-territorial powers of church and empire. It was a question of fixing the locus and character of a power of final determination. Given territorial variations in religious, political and legal conditions, there was no one model or right answer. Any consideration of the judicial persona within its early modern setting therefore dictates an approach that is relativising, comparative and jurisdictionally specific.