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The Canonists and the Mediaeval State

Published online by Cambridge University Press:  05 August 2009

Brian Tierney
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Extract

Maitland once observed that, in the Middle Ages, “Law was the point where life and logic met.” This aphorism of the master must serve as my apology for including in one essay two topics so diverse, according to some opinions, as abstract political theory and concrete constitutional problems. It may be that the mediaeval jurists can provide a link between the two spheres, for their reflections on mediaeval government were not mere philosophical abstractions. They were rooted in real life. An essential ingredient of the jurists' raw material was a practical experience of the workings of mediaeval society. It is not surprising, therefore, that eminent historians on both sides of the Atlantic have called attention to the need for legal studies as a basis for further advance in mediaeval constitutional research, and that, in recent years, we have heard a great deal about the importance of feudal law and folk law, of Roman law and English common law in the formation of mediaeval ideas and institutions. My task will be to state briefly the case for the canonists.

Type
Research Article
Information
The Review of Politics , Volume 15 , Issue 3 , July 1953 , pp. 378 - 388
Copyright
Copyright © University of Notre Dame 1953

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References

1 This paper was originally read at the annual meeting of the American Historical Association, December, 1952.

2 Clarke, M. V., Medieval Representation and Consent (London, 1936)Google Scholar, Barker, E., The Dominican Order and Convocation (Oxford, 1913)Google Scholar. For a survey of subsequent opinions on the whole subject see Templeman, G., “The history of Parliament to 1400 in the light of modern research,” University of Birmingham Historical Journal, vol. I (1948), pp. 202–231Google Scholar (reprinted in Schuyler, R. L. and Ausubel, H., The Making of English History (New York, 1952) pp. 109–127)Google Scholar

3 Powicke, , King Henry III and the Lord Edward, vol. I (Oxford, 1947), p. 261Google Scholar

4 Ullmann, W., Medieval Papalism (London, 1949)Google Scholar, Maccarone, M., Chiesa e Stato nella dottrina di papa Innocenzo III (Rome, 1940)Google Scholar, Onory, S. Mochi, Fonti canonistiche dell'idea moderna dello Stato (Milan, 1951)Google Scholar. Fr. Stickler's most recent contribution is a lengthy review article on DrUllmann, 's book, “Concerning the political theories of the Medieval canonists,” Traditio, vol. VII (1949–1951), pp. 450–463Google Scholar. This article gives references to Fr. Stickler's other papers and to earlier work on the subject.

5 Rashdall, H., The Universities of Europe in the Middle Ages, vol. I (ed. Powicke, F. M. and Emden, A. B., Oxford, 1936), p. 139Google Scholar

6 Figgis, J. N., Studies of Political Thought from Gerson to Grotius (2nd ed., Cambridge, 1916), p. 65Google Scholar. It has often been maintained that the canonists' theories of papal sovereignty were an important influence on Renaissance doctrines of royal absolutism. See e.g. Sabine, G. H., A History of Political Theory (New York, 1937), p. 326Google Scholar, “… the theory of papal absolutism became the archetype of the theory of monarchical absolutism.”

7 Ullmann, W., op. cit., p. 78Google Scholar

8 Post, Gaines, “Roman law and early representation in Spain and Italy,” Speculum, vol. XVIII (1943), pp. 211–232CrossRefGoogle Scholar, “Plena potestas and consent in medieval assemblies,” Traditio, vol. I (1943) pp. 355–408Google Scholar, “A Romano-canonical maxim ‘quod omnes tangit’ in Bracton,” Traditio, vol. IV (1946), pp. 197–251.Google Scholar

9 de Lagarde, G., “L'idée de representation dans les oeuvres de Guillaume d'Ockham,” Bulletin of the International Committee of Historical Sciences, vol. IX (1937), pp. 425–451.Google Scholar

10 this question see Kuttner, Stephan, “Canonistic studies: the need and the opportunity,” a paper read to the Medieval Acadamy of America and printed in Speculum, vol. XXIV (1949), pp. 493ffCrossRefGoogle Scholar

11 Bayley, C. C. has recently discussed Ockham's use of certain canonistic doctrines, “Pivotal concepts in the political philosophy of William of Ockham,” Journal of the History of Ideas, vol. X (1949), pp. 199–218.CrossRefGoogle Scholar

12 Supra, n. 8.