Political Theories of the Middle Age – Otto von Gierke
This excellent book is a translation of a very small portion of Dr. Gierke’s ” Deutsches Genossenschaftsrecht, ” being the section entitled ” Die Publizistischen Lehren des Mittelalters. ” Its ten chapters treat of the following questions : The evolution of political theory under the diverse influences of ancient philosophy and law, medieval theology, local custom; Macrocosm and microcosm, i.e., the relation of the whole of society to its parts and vice versa from the medieval viewpoint; unity in Church and State, wherein are discussed the warring positions of parties in both, evolved by the length of the contest between the papacy and the empire; the idea of organization, i.e., of society as an organism; the idea of monarchy, its derivation from God, its consequent relations with the plenitudo potestatis of the papacy; the idea of popular sovereignty, its conflicts and combinations with the ruler’s sovereignty, first in the temporal sphere, second, analogous developments of the idea as applied to the government of the Church, somewhat painfully brought out by the conciliar movement; the idea of representation; the idea of personality, i.e., of justice or legal personality applied to the Church and State or to minor corporations; the relation of the state to the law, natural and positive; the beginnings of the modern state, i.e., those elements in medieval doctrine that led up to the modern idea of the state. One half of the book is devoted to notes that elucidate the text of the cited authorities, a long list of which, both ancient and modern, is given. The mere enumeration of the titles of the chapters and the fact that the translation has been undertaken by so eminent a legal historian as Mr. Maitland are a warrant that the work is important, even for those who are not disposed to accept Dr. Gierke’s views on faith. English – speaking readers in general must find it interesting, accustomed as they are to look on medieval thought as mere idle speculation of the logicians; as if political theories did not then, as now, agitate men’s minds and lay the foundations for much of those political blessings that we now enjoy, or think we do. To a close observer of the development of government in the Catholic Church some portions will be, not merely interesting, but absorbing. They may even be instructive, though at the sacrifice of some preconceptions.
Political Theories of the Middle Age.
Excerpt from the text:
A large part in the volume that lies before the translator is played by ‘ the Reception.’ When we speak of the Renaissance and the Reformation we need not be at pains to name what was reformed or what was born anew, and even so a German historian will speak of the Reception when he means the Reception of Roman law. Very often Renaissance, Reformation and Reception will be set before us as three intimately connected and almost equally important movements which sever modern from medieval history. Modern Germany has attained such a pre-eminence in the study of Roman law, that we in England may be pardoned for forgetting that of Roman law medieval Germany was innocent and ignorant, decidedly more innocent and more ignorant than was the England of the thirteenth century. It is true that in Germany the theoretical continuity of the Empire was providing a base for the argument that the law of Justinian’s books was or ought to be the law of the land; it is also true that the Corpus Iuris was furnishing weapons useful to Emperors who were at strife with Popes; but those weapons were fashioned and wielded chiefly by Italian hands, and the practical law of Germany was as German as it well could be. Also — and here lay the possibility of a catastrophe — it was not learned law, it was not taught law, it was far from being Juristenrecht. Englishmen are wont to fancy that the law of Germany must needs savour of the school, the lecture room, the professor; but in truth it was just because German law savoured of nothing of the kind, but rather of the open air, oral tradition and thoroughly unacademic doomsmen that the law of Germany ceased to be German and that German law has had to be disinterred by modern professors. Of the geographical and historical causes of the difference we need not speak, but in England we see a very early concentration of justice and then the rapid growth of a legal profession. The Year Books follow and the Inns of Court and lectures on English law and scholastic exercises and that ‘call to the bar’ of the Inn which is in fact an academically earned degree. Also long before Germany had universities, Roman law was being taught at Oxford and Cambridge, so that it would not come hither with the glamour of the Renaissance. A certain modest place had been assigned to it in the English scheme of life; some knowledge of it was necessary to the students of the lucrative law of the Church, and a few civilians were required for what we should call the diplomatic service of the realm. But already in the fourteenth century Wyclif, the schoolman, had urged that if law was to be taught in the English universities it ought to be English law. In words which seem prophetic of modern ‘ Germanism’ he protested that English was as just, as reasonable, as subtle, as was Roman jurisprudence.5
Thus when the perilous time came, when the New Learning was in the air and the Modern State was emerging in the shape of the Tudor Monarchy, English law was and had long been lawyers’ law, learned law, taught law, Juristenrecht. Disgracefully barbarous, so thought one enlightened apostle of the New Learning. Reginald Pole — and his advice was brought to his royal cousin — was for sweeping it away. In so many words he desired that England should ‘receive’ the civil law of the Romans: a law so civil that Nature’s self might have dictated it and a law that was being received in all well governed lands.6 We must not endeavour to tell the story of the danger that beset English law when the future Cardinal Archbishop was speaking thus: a glance towards Scotland would shew us that the danger was serious enough and would have been far more serious but for the continuous existence of the Inns of Court, and that indoctissiimum genus doctissimorum homimnum which was bred therein. Then late in the sixteenth century began the wonderful resuscitation of medieval learning which attains its completion in the books and acts of Edward Coke. The political side of this movement is the best known. Antiquarian research appears for a while as the guardian and renovator of national liberties, and the men who lead the House of Commons are becoming always more deeply versed in long-forgotten records. However, be it noted that even in England a certain amount of foreign theory was received, and by far the most remarkable instance is the reception of that Italian Theory of the Corporation of which Dr. Gierke is the historian, and which centres round the phrase persona ficta. It slowly stole from the ecclesiastical courts, which had much to say about the affairs of religious corporations, into our temporal courts, which, though they had long been dealing with English group-units, had no home-made theory to oppose to the subtle and polished invader. This instance may help us to understand what happened in Germany, where the native law had not reached the doctrinal stage of growth, but was still’ rather ‘ folk law’ than lawyers’ law and was dissipating itself in countless local customs.
Italian doctrine swept like a deluge over Germany. The learned doctors from the new universities whom the Princes called to their councils, could explain everything in a Roman or would-be Roman sense. Those Princes were consolidating their powers into a (by Englishmen untranslatable) Landeshoheit : something that was less than modern sovereignty, for it still would have the Empire above it, but more than feudal seignory since classical thoughts about ‘ the State’ were coming to its aid. It is noticeable that, except in his hereditary dominions, the Emperor profited little by that dogma of continuity which served as an apology for the Reception. The disintegrating process was so far advanced that not the Kaiser but the Fürst appeared as ‘the Prince’ of political theory and the Princeps of the Corpus Iuris. The doctors could teach such a prince much that was to his advantage. Beginning late in the fifteenth century the movement accomplished itself in the sixteenth. It is catastrophic when compared with the slow and silent process whereby the customary law of northern France was partially romanized. No legislator had said that Roman law had been or was to be received in Germany; the work was done not by lawgivers but by lawyers, and from age to age there remained some room for controversy as to the exact position that the Corpus Iuris occupied among the various sources of law actual and potential. Still the broad fact remains that Germany had bowed her neck to the Roman yoke.
In theory what was received was the law of Justinian’s books. In practice what was received was the system which the Italian commentators had long been elaborating. Dr. Gierke frequently insists that this is an important difference. In Italy the race of glossators who were sincerely endeavouring to discover the meaning of classical texts had given way to a race of commentators whose work was more or less controlled by a desire for practically acceptable results, and who therefore were disposed to accommodate Roman law to medieval life. Our author says that especially in their doctrine of corporations or communities there is much that is not Roman, and much that may be called Germanic. This facilitated the Reception: Roman law had gone half-way to meet the facts that it was to govern. Then again, at a later time the influence of what we may call the ‘ natural’ school of jurists smoothed away some of the contrasts between Roman law and German habit. If in the eyes of an English lawyer systems of Natural Law are apt to look suspiciously Roman, the modern Romanist will complain that when and where such systems were being constructed concrete Rome was evaporating in abstract Reason, and some modern Germanists will teach us that ‘ Nature Right’ often served as the protective disguise of repressible but ineradicable Germanic ideas.
With the decadence of Nature Right and the advent of ‘ the historical school ‘ a new chapter began. Savigny’s teaching had two sides. We are accustomed to think of him, and rightly, as the herald of evolution, the man who substitutes development for manufacture, organism for mechanism, natural laws for Natural Law, the man who is nervously afraid lest a code should impede the beautiful processes of gradual growth. But then he was also the great Romanist, the great dogmatist, the expounder of classical texts according to their true — which must be their original — intent and meaning. There was no good, he seemed to say, in playing at being Roman. If the Common Law of Germany was Roman law, it ought to be the law of the Digest, not the law of glossators or commentators or ‘ natural ‘ speculators. This teaching, so we are told, bore fruit in the practical work of German courts. They began to take the Corpus Iuris very seriously and to withdraw concessions that had been made — some will say to national life and modern fact, others will say to slovenly thought and slipshod practice.
But that famous historical school was not only a school of historically minded Romanists. It was also the cradle of Germanism. Eichhorn and Grimm stood by Savigny’s side. Every scrap and fragment of old German law was to be lovingly and scientifically recovered and edited. Whatever was German was to be traced through all its fortunes to its fount. The motive force in this prolonged effort — one of the great efforts of the nineteenth century — was not antiquarian pedantry, nor was it a purely disinterested curiosity. If there was science there was also love. At this point we ought to remember, and yet have some difficulty in remembering, what Germany, burdened with the curse of the translated Imperium, had become in the six centuries of her agony. The last shadow of political unity had vanished and had left behind a ‘ geographical expression,’ a mere collective name for some allied states. Many of them were rather estates than states; most of them were too small to live vigorous lives; all of them were too small to be the Fatherland. Much else besides blood, iron and song went to the remaking of Germany. The idea of a Common Law would not die. A common legislature there might not be, but a Common Law there was, and a hope that the law of Germany might someday be natively German was awakened. Then in historical retrospect the Reception began to look like disgrace and disaster, bound up as cause and effect with the forces that tore a nation into shreds. The people that defied the tyranny of living popes had fallen under the tyranny of dead emperors, unworthily reincarnate in petty princelings. The land that saw Luther burn one ‘Welsh’ Corpus Iuris had meekly accepted another. It seemed shameful that Germans, not unconscious of their mastery of jurisprudence, should see, not only in England, but in France and even the France of Napoleon’s Code the survival of principles that might certainly be called Germanic, but could not be called German without a sigh. Was not ‘ a daughter of the Salica,’ or a granddaughter, reigning over the breadth of North America? And then, as might be expected, all manner of causes and parties sought to suck advantage out of a patriotic aspiration. The socialist could denounce the stern and bitter individualism, the consecrated selfishness, of the alien slave-owners’ law, and the Catholic zealot could contrast the Christian-German law of Germany’s great days with the Pagano-Roman law in which disruptive Protestantism had found an unholy ally.
In all soberness, however, it was asserted that old German law, blighted and stunted though it had been, might yet be nursed and tended into bearing the fruit of sound doctrine and reformed practice. The great men were neither dreamers nor purists. Jacob Grimm once said that to root out Roman ideas from German law would be as impossible as to banish Romance words from English speech. The technical merits of Roman law were admitted, admired and emulated. Besides Histories of German Law, Systems were produced and ‘ Institutes.’ The Germanist claimed for his science a parity of doctrinal rank with the science of the Romanist. He too had his theory of possession; he too had his theory of corporations; and sometimes he could boast that, willingly or unwillingly, the courts were adopting his conclusions, though they might attain the Germanic result by the troublesome process of playing fast and loose with Ulpian and his fellows.
Happier days came. Germany was to have a Civil Code, or rather, for the title at least would be German, a Bürgerliches Gesetzbuch. Many years of keen debate now lie behind the most carefully considered statement of a nation’s law that the world has ever seen. Enthusiastic Germanists are not content, but they have won something and may win more as the work of interpretation proceeds. What, however, concerns us here is that the appearance of ‘ Germanistic ‘ doctrines led to controversies of a new and radical kind. It became always plainer that what was in the field was not merely a second set of rules but a second and a disparate set of ideas. Between Romanist and Germanist, and again within each school, the debate took a turn towards what we might call an ideal morphology. The forms of legal thought, the ‘ concepts ‘ with which the lawyer ‘ operates’, were to be described, delimited, compared. In this work there was sometimes shewn a delicacy of touch and a subtlety of historical perception, of which in this country we, having no pressing need for comparisons, can know little, especially if our notion of an analytical jurisprudence is gathered from Austin’s very ‘ natural ‘ exploits. Of special interest to Englishmen should be the manner in which out of the rude material of old German law the Germanists will sometimes reconstruct an idea which in England needs no reconstruction since it is in all our heads, but which bears a wholly new value for us when we have seen it laboriously composed and tested.