Written by Vladimir Moss



     In the second half of the eleventh century, the so-called “Gregorian revolution” was in full swing. The apostate papacy was anathematizing the Eastern Orthodox Churches, waging war against the Western Orthodox kings, and sending rapacious crusaders on “holy wars” to recover lands lost to the Muslims in Spain and Palestine. However, in order that this revolution should become stable and permanent, it needed a legal underpinning, a new law…

     The impetus towards this was given by Pope Gregory VII himself, who, as Larry Siedentop writes, “may have encouraged the Countess Matilda of Tuscany to establish law lectures at Bologna, in order to promote the study of Roman law. Within a few decades this school of law acquired a remarkable reputation. It began to attract students from across Europe. By the end of the century a jurist, Irnerius, was lecturing at Bologna on the body of Roman law, the Corpus Juris Civilis of Justinian [which had been discovered in a library in Northern Italy, together with important works from pre-Christian antiquity, such as Aristotle’s Politics[1]]. Inerius and other jurists did not merely discover in Roman law a rich, sophisticated collection of rules relating to different conditions of life and society. Their encounter with Roman law stimulated reflections on the nature and requirements of a legal system, a kind of jurisprudence. For them, Roman law conjured up the vision of an autonomous, self-contained legal system.

     “Such a vision inevitably prompted comparison with the rules of canons supposedly governing the life of the church. These seemed painfully inadequate when compared to the elaborate, articulated structure of Justinian’s Corpus. There had, it is true, been earlier collections of canons that brought together the decisions of ‘universal’ church councils, papal decrees and the opinions of church Fathers such as Augustine and Gregory the Great. But these collections were centuries-old and incomplete, often incoherent or inconclusive. The new Roman lawyers or ‘civilians’ viewed them with some contempt.

     “What was needed to introduce order and unity into the laws of the church? What were the legal and practical prerequisites of a legal system? Justinian’s Corpus Juris Civilis suggested a clear answer: ‘The emperor is not bound by statutes’. Supreme authority had to be invested in a single agency that would itself be above the law. Just as the emperor’s imperium had become the final source of Roman law, the laws of the church required a source that was not itself bound by law and so was able to prevent contradictions or anomalies developing within the system. Such a source for law provided the means of abrogating undesirable customs.”[2]

     What was needed, therefore, was a new body of law in which the final source of legislative authority would be the pope, not the emperor. However, the new law would have to be very wide-ranging, with major inroads into what, in Byzantine and Western Orthodox times, had been within the secular ruler’s jurisdiction. For this was the whole essence of the Gregorian revolution: the invasion of Caesar’s domain by God’s (i.e. the Pope’s).

     This meant pillaging Justinian’s Corpus for what was compatible with the Gregorian project while discarding all the rest (together, of course, with the whole spirit of Byzantine jurisprudence). “As Ivo of Chartres insisted at the end of the eleventh century, only those parts of Roman law acceptable to the church should be adopted. Yet before long the areas invaded by canon lawyers included important parts of both private and communal law, for the church took a close interest in matters such as marriage, testaments, adultery, divorce, perjury, usury and homicide. Little wonder that at times civil lawyers felt their domain was under threat…”[3]

     The result was the publication, in about 1140, of Gratian’s Concordia discordantium canonum, “Concord of Discordant Canons”, later called simply the Decretum, in which much of Justinian’s Corpus was collated, compared and commented on. It quickly became the standard compilation of church law.

     Gratian’s Decretum was particularly important in its influence on the justifications that preachers used for the crusades. “A long section, Causa XXIII, was devoted to warfare and violence. Although on the surface Gratian did not deal with crusading – the Causa’s process of argument started with the issue of the suppression of heresy by force – consciousness of it lay behind the armoury of justifications for the Church’s authorization of violence provided to clerical readers, who were led inescapably through a panoply of authorities, to the conclusions that war need not be sinful, could be just, and could be authorized by God, and, on God’s behalf, by the pope...”[4]

     “Gratian,” writes K. Pennington, “made a general statement about law at the beginning of the Decretum: ‘The human race is ruled by two things: natural law and custom.’”[5] We shall return to the critical concept of natural law later. But here we may note the distinction between a higher law based in the deepest nature of things, however that is defined, and the acts of human legislators. It is, or should be, the aim of human legislators to make their acts correspond as closely as possible to the higher law, or “Law” with a capital “L”. If they succeed in doing this, then they may be said to be following “the rule of law”.

     As Francis Fukuyama writes, “Early European states dispensed justice but not necessarily law. Law was rooted elsewhere, either in religion (as in the edicts regulating marriage and the family…) or in the customs of tribes or other local communities. Early European states occasionally legislated – that is, created new laws – but their authority and legitimacy rested more on their ability to impartially enforce laws not necessarily of their own making.

     “This distinction between law and legislation is critical to understanding the meaning of the rule of law itself. As with a term like ‘democracy’, it sometimes seems as if there are as many definitions of ‘rule of law’ as there are legal scholars. I use it in the following sense, which corresponds to several important currents in thinking about the phenomenon in the West. The law is a body of abstract rules of justice that bind a community together. In premodern societies, the law was believed to be fixed by an authority higher than any human legislator, either by a divine authority, by immemorial custom, or by nature. Legislation, on the other hand, corresponds to what is now called positive law and is a function of political power, that is, the ability of a king, baron, president, legislature, or warlord to make and enforce new rules based ultimately on some combination of power and authority. The rule of law can be said to exist only where the preexisting body of law is sovereign over legislation, meaning that the individual holding political power feels bound by the law. But if they are to function within the rule of law, they must legislate according to the rules set by the preexisting law and not according to their own volition…

     “The rule of law in its deepest sense means that there is a social consensus within a society that its laws are just and that they preexist and should constrain the behavior of whoever happens to be the ruler at a given time. The ruler is not sovereign; the law is sovereign, and the ruler gains legitimacy only insofar as he derives his just powers from the law.”[6]

     Let us now turn to how the legal works of Gratian and his followers defined the relationship of the king to the law… “Classical Roman law,” writes Pennington, “was not particularly helpful for understanding the limitations of legislative authority. The passages in Roman law touching upon the emperor’s right to legislate were open to contradictory interpretations. A text from Justinian’s Code, Digna Vox (Cod. 1.14.4) stated that although the emperor is the source of all law, he should conduct his actions according to the law. This was repeated at Cod. 6.23.3. These two texts seem to sustain the idea of a limited, constitutional monarch whose actions must conform to the rules of the legal system. In contrast, other texts in the Digest stressed the illimitability of the emperor’s authority and his absolute power. In Dig. 1.4.1, the Roman jurist Ulpian declared that ‘what pleases the prince has the force of law’, which underlined a similar point he made in another text, ‘the prince is not bound by the law’ (Dig. 1.3.31).”

     However, the idea of a limited, constitutional monarchy did not really come into being before Magna Carta (1215). The contrast in antiquity was between the absolutist ruler, who recognized no authority above himself, and the Orthodox ruler, who recognized that he was subject to the Law of God, even if he was the source of all human legislation. But the canonists could manipulate the Orthodox law to suit their master, the anti-Orthodox pope. For “these texts were not intractable. In the hands of skilled lawyers, they could be used to fashion systems of constitutional or of absolute monarchy. In the beginning the lawyers had difficulty assimilating these texts of Roman law into their thought because they did not always have a clear understanding of the complex issues underlying them. Further, their assumptions about monarchical authority were taken primarily from Germanic law and feudal customs, which emphasised the contractual relationship between the people and the monarch and which laid down the king’s sacred duty to defend the laws and customs of the land. In this system of thought, law must be reasonable and just. A prince could not exercise his office arbitrarily. A monarch could legislate, but his authority was circumscribed by a restrictive web of ideas which demanded that there be a need for new law and that the people consent to new law, either by approving it formally or by accepting it through use…”[7]

     In other words, in Orthodox times rulers had not been absolute. There had been “a restrictive web of ideas” that they were required to conform to if their legislation was to be accepted as lawful. This higher law was Orthodox Tradition, which was not to be identified with the decrees of the Pope or any Church hierarchy… The innovation introduced by the Gregorian revolution consisted in the usurpation of this higher law by the Pope, whose “plenitude of power” brooked no contradiction or appeal to a higher court. Moreover, it extended not only over kings and bishops, but also over every Christian soul, cutting through and across all other loyalties of race, class or feudal status.

     “In this way,” writes Siedentop, “canon law developed around a new theory of justice, a theory resting on the assumption of moral equality. To find it, we have only to look at the opening words of Gratian’s Decretum: ‘Natural law [jus] is what is contained in the Law and the Gospel by which each is to do to another what he wants done to himself and forbidden to do to another what he does not want done to himself.’ Here the biblical ‘golden rule’ has been imposed on the ancient theory of natural law, so that equality and reciprocity are made the mainsprings of justice. Without, perhaps, fully realizing the novelty of his move, Gratian fused Christian moral intuitions with a concept inherited from Greek philosophy and Roman law. Relations of equality and reciprocity are now understood as antecedent to both positive and customary law. They provide ultimate standards for judging the contents of each. By identifying natural law with biblical revelation and Christian morality, Gratian gave it an egalitarian basis – and a subversive potential – utterly foreign to the ancient world’s understanding of natural law as ‘everything in its place’.”

     At first sight, there would seem to be nothing wrong with placing the Gospel commandments at the foundation of justice. However, the rub came in the principle’s application, its “subversive potential” in the hands of the Pope. Or his subjects…

     “This new theory of justice, developing within canon law, would have far-reaching consequences. For it marked a departure from the assumptions about status embedded in Roman law since antiquity. For example, the second-century jurist Gaius had relied on three tests to establish personal status:

     Is the person free or unfree?

     Is the person a citizen or foreign born?

     Is the person a paterfamilias or in the power of an ancestor?

Evidently, Gaius did not assume an underlying equality of moral status. His use of ‘person’ was purely descriptive and physical. It carried no moral implications. The church, following Constantine’s conversion, had accepted much Roman private law, modeling its courts and procedures on that law. But when knowledge and practice of Roman law declined after the fall of the Western empire, the overriding concern of the clergy was to save as much as possible, by helping Germanic rulers to create law codes for their new kingdoms and trying to protect their Romanized subjects. The understanding of Roman legal terms became fragile. For centuries there was neither leisure nor the ability to review basic assumptions about status in Roman law.

     “Gratian’s interpretation of the requirements of natural law amounted, however, to just such a review. It amounted to a reversal of assumptions in favour of human equality. For, in effect, it stipulated that all ‘persons’ should be considered as ‘individuals’, in that they share an underlying equality of status as the children of God. Instead of traditional social inequalities being deemed natural – and therefore not needing justification – an underlying moral equality was now deemed natural. This reversal of assumptions meant that paterfamilias and lordship were no longer ‘brute’ facts that stood outside and constrained the claims of justice. They too were now subject to the scrutiny of justice. 

     “Of course, the canonists did not foresee all the implications of this reversal of moral presumptions. They were not social revolutionaries. But the fact remains that they laid the foundation for a move away from an aristocratic society to a ‘democratic’ society. Such a reversal of assumptions not only foreshadowed a fundamental change in the structure of society. It also freed the human mind, giving a far wider scope and a more critical edge to the role of analysis. It made possible what might be called the ‘take-off’ of the Western mind…

     “We can see the impact of this intellectual revolution on thinking about political authority. The canonists were greatly influenced by the notion of imperium in Roman law. Yet their translation of imperium into the papal claim of sovereignty changed its meaning. Individuals rather than established social categories or classes became the focus of legal jurisdiction. Individuals or ‘souls’ provided the underlying unit of subjection in the eyes of the church, the unit that counted for more than anything else. In effect, canon lawyers purged Roman law of hierarchical assumptions surviving from the social structure of the ancient world…”[8]

     Siedentop makes a valid and important point here. Nevertheless, he exaggerates the role that the Gregorian revolution played in the emergence of the concept of the individual. That concept did not emerge as a consequence of the idea of the papal sovereignty over all Christians. The idea that God will judge all men impartially in accordance with His commandments and regardless of their social status was introduced at the beginning, not at the end of the first Christian millennium. Moreover, the Byzantine Autocracy and all her children in the East and the West fully understood that the individual person is the unit of moral evaluation, and that kings and paupers, clergy and laity – all will be judged according to the same criterion. The difference with the epoch that began with Gregory VII was that the early Church, following St. Paul’s words: “Let each one remain in the same calling in which he was called” (I Corinthians 7.20), believed that the race, sex, wealth, calling and social status of each individual were not accidental or “brute” facts about them, but providential – that is, decreed by God for the sake of that individual’s salvation. It followed that social mobility, still less social revolution, the overthrowing of hierarchies and social structures, were not Christian aims; even slavery remained virtually untouched as an institution, although Christians were encourage to liberate their slaves and in any case treat them well, as brothers in Christ. At most, the “anointed of God”, the Orthodox emperor or king, could make some minor changes around the edges to the social structure. But Orthodox Christian society remained consciously conservative, traditional and hierarchical.

     The Gregorian revolution retained the hierarchical aspect of Orthodox Christian society, but was profoundly radical and anti-traditional. Moreover, the hierarchy was now quite different in kind. Now it was a despotism of a strictness and universality that had never yet been seen in human history since Nimrod. The Pope was the supreme despot, and all men, if they wanted to be saved, had to be his subjects. Too late the Christians of the West learned that the complex, aristocratic structure of pre-Gregorian (and especially pre-feudal) Christian society had been designed by God, not in order to enslave them, but in order to keep them free from despotism and heresy…


July 23 / August 5, 2015.

[1] Francis Fukuyama, The Origins of Political Order, London: Profile, 2012, p. 268.

[2] Siedentop, Inventing the Individual, London: Penguin, 2010, p. 212.

[3]Siedentop, op. cit., p. 213.

[4] Jonathan Riley-Smith, The Crusades: A Short History, London: Athlone Press, 1987, p. 93.

[5] Pennington, “1. Law, legislative authority, and theories of government, 1150-1300”, The Cambridge History of Medieval Political Thought, c. 350 – c. 1450, Cambridge University Press, 1991, p. 424.

[6] Fukuyama, op. cit., pp. 245-246.

[7] Pennington, op. cit., pp. 426-427.

[8]Siedentop, op. cit., pp. 216-217, 218, 219.

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