The will of the prince and the law

In the middle of the twelfth century, Gratian completed his Concordia discordantium canonum – a ‘Concord of Discordant Canons’, later called simply the Decretum – and, unlike most earlier compilers of canonical collections, he began with a series of texts and comments on the various sources and types of law. Gratian did more than gather texts together; he unified and explained them, and in some cases he rejected the authority of some as being out-of-date or superfluous. The Decretum was the first collection of the high Middle Ages in which the compiler commented on the texts he brought together. It was an important step in medieval jurisprudence.

Gratian made a general statement about law at the beginning of the Decretum: ‘The human race is ruled by two things: natural law and custom.’

He followed this definition with discussion of the types of human law: unwritten custom, civil law, the law of a city or a people, and the different types of laws in classical Roman law. A few pages later, he ended his treatment of legislation by defining how a law was validated: ‘Laws are established through promulgation and validated when they are approved by the acceptance of the people.’ Gratian's treatment of law was in the mainstream of legal thought in the twelfth century. But he presented only raw, unassimilated ideas. He thought that the source of law might be a prince or the time-honoured customs of people.

The lack of precision in the medieval political vocabulary and the great diversity of literary genres involved in studying it make it far from easy to provide a full explanation of community, council, representation and constitution over the three hundred years from 1150 to 1450. In addition to that, the words themselves can refer to widely varying social and political realities. It is only very recently that law, ethics and politics have come to be considered independently of each other: the middle ages had no such divisions. Roman law and canon law are used with a liberal disregard for the texts and their original purpose which would be almost inconceivable today, and one result of this is that one may well come across material of prime importance to the subject under consideration here mentioned in passing in a theological commentary on some quite different topic. Medieval thinkers, in other words, tended to see human social and political affairs as one part of a whole, to think of man himself in relation to the world, to his fellow-men, and to God. There was some attempt, following the Latin-speaking West's rediscovery of Aristotle, to unify terms and ideas under his influence: that is precisely the significance of the ‘commentaries’ on Aristotle, particularly those on the Politics and the Nichomachean Ethics. These must be understood as commentaries in the broad sense, for in fact one finds Aristotle's thought in treatises which, while not pure commentaries, use his ideas at least as much as the formal commentaries, if not more.

The student of political action and thought from the Carolingian age to the ‘renaissance of the twelfth century’ will naturally concentrate on the development of monarchy and of feudalism. It is, after all, in this period that the ‘feudal monarchy’ – to use a phrase given wide circulation by Petit-Dutaillis’ classic work – is said to have flourished. The first part of this chapter will therefore seek to unravel the main lines of development in the monarchy built by the Carolingians in the eighth and ninth centuries. This underwent an eclipse verging on total collapse during the tenth and eleventh centuries, and was followed in the twelfth by a number of successors, the direct ancestors of the national states of modern Europe. The second and third parts of what follows will deal with manorialism and feudalism respectively, with the aim of establishing their role and importance in this period.

Monarchical government

The Carolingian Empire and its disintegration

The starting point of the analysis is the historic fact that the Carolingians founded a great multiracial state which comprised all western Christendom except the British Isles and gave its mainly Romanic and Germanic peoples a period of political stability and peace such as they had not known since before the days of the Germanic invasions. This pax Francorum was the result of an original mixture of Germanic and Mediterranean elements, strongly influenced by Christian ideas and based on the prestige of the house of Charlemagne.

For ideas of kingship, the period c. 750 to c. 1150 was no longer one of beginnings but of consolidation. It saw the formation of a single culture in an expanded Latin Christendom. It began with the incorporation of significant Spanish and insular contributions into the mainstream of western political thought, and it ended with new contributions from as far afield as Bohemia and Denmark. The history of the period was dominated first by the Frankish Empire, then by states that succeeded to or were profoundly influenced by it. Its creation strengthened in the short run the traditional elements in barbarian kingship, successful leadership of the people (gens) in wars of conquest and plunder bringing Frankish domination of other gentes. Hence the hegemonial idea of empire, of the emperor ruling many peoples and realms, arose directly from the political experience of the eighth-century West. In the longer run power devolved to kingdoms that proved durable, without a gentile identity or an economic base in plunder and tribute. This brought new formulations of the realm as a territorial and sociological entity, the aristocracy sharing power and responsibility with the king. The idea of empire detached from its gentile anchorage acquired Roman-Christian universality.

In the eighth century the Frankish kings Pippin and Charlemagne successfully mobilised two elites, the higher clergy of the Frankish Church and the Frankish aristocracy. Power-sharing was built into the fabric of the Carolingian Empire though it was masked at first by a community of interest that evoked a chorus of praise for rulers evidently possessed of divine approval.

The period from the late thirteenth century to the mid-fifteenth occupies a particularly important position in the history of the juristic contribution to political thought, because in it there emerged the school of the Commentators, which was the culmination of medieval civilian jurisprudence, and as such was to exert a profound influence on early modern political thought. These years also produced major canonists building on the achievements of the thirteenth century. Juristic theory deeply influenced political ideas in three areas in particular. First, jurists developed further the theme of the relationship between positive law and the overall normative structure within which they considered human law and government operated: that is to say, the relationship between the will of the law-makers (whether emperor, pope, king, signore, or people) and the limitations posed by fundamental laws. The other two aspects relate to the jurists' response to the contemporary political phenomenon of the emerging territorial state. They consolidated theories of territorial sovereignty, in the case of kingdoms developing further theories which had originated towards the end of the twelfth century, and in that of city-republics producing innovations in juristic terms. Furthermore they made crucial advances in corporation theory producing thereby a specifically juristic contribution to the emergence of the idea of the state.

The normative context of human law and government

The role of fundamental norms

That these jurists should have accepted such a normative structure was only to be expected: it was, after all, a basic presupposition of the juristic tradition and of medieval thought about law and society with, as we shall see, the possible and notorious exception of the views of Marsilius of Padua.

Towards the end of his classic six-volume scrutiny of medieval political thought in the west, A.J. Carlyle pronounced that

In one important way, Carlyle was right. That Christ himself had separated the functions of king and priest was one of the axioms of medieval politics. And Boniface VIII's much-publicised burst of irritation at a French insinuation that he was unaware of that fact symbolises the western Church's adherence to the principle of dualism. Nor was that headstrong champion of the libertas ecclesiae any less doubtful than his predecessors that it was also axiomatic that the spiritual power was independent of the temporal. But a pope who claimed the papacy's right to institute the lay power ‘that it may be’ (ut sit), to judge it if it acted unethically, even to depose a lay ruler for serious, persistent political misconduct? This was surely to doubt the independence and supremacy of the temporal power in its own sphere, to reject the concept of an autonomous lay authority and to go on, by way of the ‘two swords’ allegory, to assert a unity of the powers founded on the supremacy of the spiritual. The argument that Unam sanctam was atypical and to be set aside as a serious misinterpretation of conventional papal theory before and after the pontificate of Boniface VIII cannot be taken seriously.

Dualism in fact meant different things to different types of ruler. The papacy accepted a principle of dualism but it was so fundamentally conditioned by another axiom, the superiority of the spiritual power, that it was in effect replaced by a unitary view of the two powers.

Western Europe during the four centuries that precede the establishment of the Carolingian monarchy in 751 saw the conversion to Catholic Christianity of the barbarian successor kingdoms within the limits of the western empire and their progressive withdrawal from Byzantium's sphere of influence. Within a short period of about fifty years the Carolingian Franks became masters of all western Christendom excluding the British Isles. With the imperial coronation of Charlemagne in Rome in 800 and with the experience of personal rule on an apparently universal scale the barbarian phase of European history reaches its zenith.

The empire of Charlemagne, the ‘father of Europe’, did not retain its fullest size or its unity for long but it left an enduring memory to the later generations. Its lands were divided in 843 among different members of the Carolingian dynasty although one of the family always carried an imperial title until 924. The ninth century experienced the irruption into north-western Europe of the pagan Vikings, while central Europe became destabilised following invasions by the Magyars until the battle of Lechfeld in 955. The collapse of the Carolingian state in west Francia made way for regional or territorial principalities whose rulers around 900 attempted to exercise the functions nominally still belonging to the Carolingian king. When the last such king died in 987, and Hugh Capet secured election to the throne, there was no hint that the Capetian house would ever come to rule on more than a small local scale.

The thirteenth century marked the great turning-point in medieval political thought: an idea of the state was clearly acquired and located within an overtly political and this-worldly dimension. This development had its roots in the twelfth century and was the product of the assimilation of ideas derived from the study of Aristotle and Roman law in universities. Theocratic, hierocratic and feudal conceptions continued nevertheless to exist in parallel with these new ideas and the result was dialogue, interaction and confrontation. Political thought thus became more complicated and variegated in the late Middle Ages, as it mirrored the development of medieval society. A new world was emerging in which territorial states made the universalist claims of the empire anachronistic, while increasing urbanisation and commercial activity contributed to the decay of feudalism. The preoccupations which had dominated political thought in the high Middle Ages suffered a prolonged sea-change and new concerns joined them.

The political context

Relations between the papacy and secular rulers

The main preoccupation of political thought in the high Middle Ages was clearly the relationship between the church and secular rulers, and in particular that between the papacy and the empire. The history of conflict between the popes and the emperors continued after 1150, and indeed the reign of Frederick I Barbarossa (1152–90) saw a major confrontation with pope Alexander III. Frederick sought to apply in practice the universalist conception of Roman emperorship found in the Corpus Iuris Civilis, the study of which he favoured at Bologna.

The character of ‘medieval political thought’ is problematic. Its very existence, as an identifiable entity or subject, may be questioned, and has been denied. Yet such doubts and denials seem less than plausible in the light of the sustained and fruitful scholarly investigation and exposition that the subject – though not always under this title – has received for the best part of a century. Some aspects of that historiography will be considered in a moment. First, however, something needs to be said more directly about the nature of the subject itself. It is no doubt true that if certain definitions of ‘political thought’ are accepted it will be hard to find such thought in the period surveyed in this book. For most medieval thinkers the analysis, whether conceptual or institutional, of ‘politics’ in its original Greek sense was neither relevant nor possible. Even after the so-called ‘Aristotelian revolution’ of the thirteenth century this is still substantially true. Concepts and terminology derived from Aristotle's Politics then indeed became common intellectual currency; and yet there is no medieval work challenging even distant comparison with that massive treatise. The influence of Platonic or neo-Platonic ideas was no doubt more continuous, though the light it shed was refracted; but there is no medieval text of the character, let alone the calibre, of Plato's Republic. Ideas, whether Platonic or Aristotelian, rooted in the life of the polis or city-state had at best a limited application in most medieval societies.

For all the tribulations and transformations experienced by the Roman empire in the third and fourth centuries, the territorial configuration of its western half in 400 was not significantly different from that of 200 years before. Just a lifetime later imperial power was extinct in the west, which lay parcelled out among an assortment of kings and other warlords, predominantly Germans. Ex uno plura. The political map was to be redrawn time and again in the years ahead as new barbarian powers asserted themselves, as the empire strove to re-impose its control, as Islam expanded its dominion. Not one of the Germanic kingdoms of 750 had arisen at the direct expense of the fifth-century empire: the Anglo-Saxons had descended in force upon an already abandoned Britain; the origins of the huge regnum Francorum lay with Clovis (c. 481–511); the Lombards had entered Italy only in 568. But, as all this demonstrates, the west had continued to know political fragmentation. Indeed, it has known it ever since. If the unitary ideal, among the most potent of Rome's legion legacies, has never been far from the forefront of the western European consciousness, it is the political plurality bequeathed by the fifth-century collapse which in practice has always prevailed.

To multiplicity of polities corresponded diversity of ethos and inner form. That Germanism, Romanitas and Christianity worked as shaping influences upon all the barbarian kingdoms may be granted. But the generalisation conceals a host of variables. The Germans were no undifferentiated mass, and the nature of their contribution varied from kingdom to kingdom.

The early Christians understood the Church to which they adhered to consist of a community called out to serve God as his people and focused on Jesus of Nazareth as model for the disciples' filial relation to God. At first entirely Jewish both in composition and in conception, the community was transformed by St Paul into a body of universal extension. In the apostle's conviction God, through Jesus the Messiah and his society, had at last disclosed his eternal plan: that is, to call men and women of all races and conditions in faith and obedience to a Master who acted out and embodied the redeeming love of God for his fallen creation. The huge success of the Gentile mission, led by this Jew of the Dispersion with Roman citizenship, changed the Church from being an ethnic minority group which could hope for easy toleration within an empire generally ready to allow tribal religion, even when it diverged from the official religion of the government. Romans believed that empire had been bestowed not only by their own gods, but also by the gods of the conquered peoples; the latter deities could therefore be taken over. The Jews, whose Maccabaean resistance to assimilation made them respected but little loved in Greco-Roman society, were unmolested in their cultic practices which ‘though very peculiar, were at least ancestral’ (Celsus). But alarm was generated by the Christians dividing families and recruiting from all races and classes: mixing slaves and free; treating ‘brothers and sisters’ within the community as equal (Gal. 3:28; Col. 3:11); above all refusing to accord divine honour to the emperor or to swear by his genius.

The Church and the ordo clericorum

Images of the Church

The period 750–1150 produced no treatise de ecclesia, nor did it witness ecclesiological speculation of the type familiar in the later Middle Ages. The intellectuals of these four centuries possessed not so much a ‘concept of the Church’ (Kirchenbegriff) as an ‘image of the Church’ (Kirchenbild) – or rather, multiple images, drawn from Holy Scripture. Trained, as most learned men of this period were, in the contemplative approach of the lectio divina, they knew that the whole Bible speaks of Christ and his Church ‘in spiritual similitudes … as through a glass darkly’. Reading the sacred page allegorice, the student would find as much ecclesiological as christological material. ‘The Church … is called by many names in Scripture, such as the kingdom of heaven, the woman, the bride, the wife, the dove, the beloved, the vine, the sheep, the sheepfold, the city, the tower, the pillar, the firmament, the house, the temple, the body of Christ, the net, the supper and others which the reader can perhaps find.’ The anonymous twelfth-century encyclopaedia of biblical typology, Allegoriae in universam sacram Scripturam, identifies eighty allegories of holy Church in the Old and New Testaments. Some of these allegoriae are more than metaphors: they are fully developed ecclesiological ideas of great power and complexity. In four of these allegories in particular – ‘the body of Christ’, ‘the ship’, ‘the bride’ and ‘the mother’ – the ecclesiology of the period 750–1150 can be traced. Corpus Christi.