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dation of the Western legal tradition in the late eleventh century will be con-
sidered. Practical authority or sovereignty was extremely particular “ there was
nothing like a state in the modern sense. Europe was made up of quasi-tribal
units, with the increasing legal formality of feudalism. Against that particular-
ity, papal authority was projected onto a rich social tapestry as a universalistic,
moral concern, becoming important for justifying authority at all social levels.
The limited political power of the ¬rst millennium papacy was buttressed by the
considerably greater political power of the ephemeral Carolingian Empire and

11
The Birth of Europe, trans. Janet Lloyd (Oxford: Blackwell Publishing, 2005), p. 19.
12
Le Go¬, Europe, p. 43.
80 A Holy Roman Empire


secular powers which would follow. All of this should help to sketch a picture
of the ˜true European Community™, the notion of which Philip Allott has con-
trasted to the inorganic, twentieth-century treaty version.3


4.1 A rhetorical ˜holy Roman empire™
Chapter 3 proposed that a notion of ultimate reality and meaning or God
underlies a constitution. To make sense in a book concerning itself with the
Western legal tradition, reference must be made to God in association with
legal institutions. A way to do this is to associate the Holy Roman Empire with
the God of the Judeo-Christian tradition, and to re¬‚ect upon a vying if not
potentially substitute concept of that ultimate reality, culminating in a compet-
ing twentieth-century god-concept, Mammon. Perhaps too whimsically, this
movement can be thought about as a shift from the Holy Roman Empire to a
˜wholly Mammon empire™. The conclusion will not emerge in chapter 10 that
there is a wholly Mammon source of ultimate meaning legitimating Western law
today (although Mammon appears to dominate the contest so far as free trade
and human rights are concerned). To describe an extreme of a tendency,
however, the term ˜wholly Mammon empire™ can be illuminating, if the pun can
be excused. Implied in this shift is a functionally recurring authority (an ulti-
mate principle of ˜good™ upon which to justify law), in an ethically di¬erent
guise (that is, whereas material prosperity was not so important to the con-
ception of God at the beginning of the second millennium, it was extremely
important at the end of the second millennium and is so today).
Some ¬‚exibility is required in the use of the term ˜Holy Roman Empire™,
inherent in the title. Introduction of the name ˜Roman empire™, centuries after
the fall of its classical namesake, occurred by grant of the pope in the later part
of the tenth century when German kings sought to make Rome the capital of
the empire, in the quest for control over the kingdoms of Burgundy, Italy
and Germany. It became ˜holy™ in the later twelfth century when Frederick I
Barbarossa sought to establish the special nature of the empire, becoming for-
mally entitled the Holy Roman Empire in 1254.4 England never recognised in
its own territorial realm the sovereignty of the emperor of the Holy Roman
Empire or a German king. Rhetorically, and to avoid confusion with the pri-
marily German association of the formal title, reference will be made descrip-
tively but not titularly to ˜a holy Roman empire™, when contrast is to be drawn
to a potential ˜wholly Mammon empire™, principally in part 4. This sense of ˜a
holy Roman empire™ is more akin to the Christian commonwealth than ˜the

13
See Phillip Allott, ˜The European Community is Not the True European Community™ (1991)
100 Yale Law Journal 2485“500.
14
See Hendrik Spruyt, The Sovereign State and its Competitors: An Analysis of Systems Change
(Princeton: Princeton University Press, 1994), p. 235; Harold J. Berman, Law and Revolution:
The Formation of the Western Legal Tradition (Cambridge, MA: Harvard University Press,
1983), p. 89.
81 The original European community


Holy Roman Empire™, as medieval rulers increasingly denied subordination to
the emperor. It is used in contrast to ˜a wholly Mammon empire™ as a pithy
attempt to capture the di¬erent ethics of functionally similar god-concepts
authorising law at the beginning and end of the second millennium. The holy
Roman empire evokes the contemporary notion of governance (not government
in the sense of one state-like government).5 Moral allegiance to its universalist
norms was sought by the church through the authoritative normative text of the
Bible in an increasingly objective manner, in a relationship (at times stretched)
with local, particularistic political powers and ultimately the universalistic6
Holy Roman Emperor himself. It represented a governmental alliance with high
claims to moral allegiance and political power within a relatively common nor-
mative history and vision for the future.


4.2 Tribalism
With the eruption of the Germanic invasions from the ¬fth century onwards,
the embrace of the classic Roman Empire gradually weakened.7 The so-called
dark ages (about 476“800) were characterised by the raiding Gothic, Teutonic
and Viking tribes. Any functional equivalent of international law at that time
was di¬cult to conceive between tribes. Most Germanic tribes revered Valhalla,
the hall of the god Odin, who received the souls of warriors killed in battle.8 The
other tribes had no less bellicose veins. When life is not revered, and death
for a cause praised within a culture, it becomes di¬cult to have law between
such cultures (a fact to which modern times still attest). Ultimate reality and
meaning in such societies inspires death and repulses a shared legal order.
A strong sense of normativity did, however, inhere within the Germanic
tribes and there were interclan meetings. Constitutional elements, for example
amongst the Visigoths, attempted to limit the autonomy of kings with respect
to the church, although in practice the king™s power was often unchecked.9 The
Lombards availed their administration of Roman centralism and city and
diocesan structures. ˜Vulgar™ Roman law, a corrupted form of the original, sur-
vived,10 although it is perhaps best regarded without deprecation as a point of

15
On this distinction in today™s globalisation discourse, see ch. 12, section 12.3.2, pp. 291“2 below.
16
Frederick™s death on crusade in 1190 demonstrates the universalism of the Holy Roman
Empire inclusive of the papacy: Malcolm Barber, The Two Cities: Medieval Europe 1050“1320
(London: Routledge, 1992), p. 212.
17
On this gradual process, see Henry Chadwick, ˜Envoi: On Taking Leave of Antiquity™ in John
Boardman et al., The Oxford History of the Classical World (Oxford: Oxford University Press,
1986).
18
T. A. Walker, History of the Law of Nations (Cambridge: Cambridge University Press, 1899), p. 64.
19
O. F. Robinson, T. D. Fergus and W. M. Gordon, European Legal History (London:
Butterworths, 1994), [1.7.3].
10
See Franz Wieacker, ˜Foundations of European Legal Culture™ (1990) 38 American Journal of
Comparative Law 1“29, 9“10; Berman, Law and Revolution, p. 53; R. C. van Caenegem, An
Historical Introduction to Private Law, trans. D. E. L. Johnston (Cambridge: Cambridge
University Press, 1988), pp. 17“18.
82 A Holy Roman Empire


departure from Roman law on the way to the arrival of the later medieval
European common law.11 There was also a Christian in¬‚uence, although super-
stition was rife in dispute resolution procedures such as trial by ordeal. An oral
legal tradition and some unsystematic compilations of laws did not stop blood
feuds, although there was a rationalisation of this process through emerging
lists of penalties.12 The ultimate reality and meaning in these societies was
thought to reside in arbitrariness and fate.13 On the Space-Time Matrix, there
was a high degree of interior, moral allegiance in these legal processes, without
exterior political power in the form of bureaucracy or decisions imposed by
unknown individuals. Generally, these societies were traditional and conserva-
tive, without a radical vision for the future.
As Sir Henry Maine wrote, this time and place in history can be characterised
by ˜tribe-sovereignty™. Germanic tribes were ˜masters™ over their occupied terri-
tories, although ˜they based no claim of right upon the fact of territorial pos-
session, and indeed attached no importance to it whatever™.14 Frontiers were
more in the nature of meeting places than borders. Clashes at these meeting
places, as well as trade and general intermingling, were characteristic, including
the mixing of blood and ethnic regroupings.15 Within this emerging, diverse
feudal society, two political powers did attempt to ¬ll the vacuum left by the
Roman Empire. One would be relatively short-lived, and another the longest
surviving normative institution in the Western world: the Carolingian Empire
and the Roman Catholic Church, respectively.


4.3 Charlemagne™s short-lived political universalism
If Europe appeared when the ancient Roman Empire fell, Charlemagne™s empire
¬rst gave Europe its form.16 The Merovingians had ruled over the Franks occu-
pying transalpine Gaul and part of Germany as kings of the Franks, not kings of
France as a territory (which lacked dignity). The only alternative would have
been the ancient Roman imperial title of ˜emperor™ “ a universalist claim to
rulership of the whole world.17 The term ˜Europe™ was revived in, and survived
ephemerally with, the successor to the Merovingians, Charlemagne, who did
style himself after the Roman emperors. He ruled what is now much of western
Germany, France, northern Italy and part of northern Spain.18 His aspirations

11
Maurizio Lupoi, The Origins of the European Legal Order, trans. Adrian Belton (Cambridge:
12
Cambridge University Press, 2000), p. 38. See van Caenegem, Private Law, pp. 18“19, 26.
13
See generally Berman, Law and Revolution, ch. 1.
14
Sir Henry Sumner Maine, Ancient Law: Its Connection with the Early History of Society and its
Relation to Modern Ideas [1861] (reprinted Dorset Press, 1986), p. 86.
15
Le Go¬, Europe, pp. 4, 19.
16
Alessandro Barbero, Charlemagne: Father of a Continent, trans. Allan Cameron (Berkeley:
University of California Press, 2004), p. 3, quoting from Marc Bloch and Lucien Febvre.
17
Maine, Ancient Law, pp. 86“7. Territorial sovereignty, upon which modern sovereignty is
based, was to await the French Capetian dynasty (987“1328). See ch. 6 below.
18
See Norman F. Cantor (ed.), The Medieval Reader (New York: HarperPerennial, 1995), p. 97.
83 The original European community


were universalist, as opposed to the previously fragmented concerns of tribal
chiefs, and wars were led against Lombards, Saxons, Gascons, Avars and Danes,
amongst others.19 The universalist moral authority was reliant upon the papacy.
Either his father™s or his own hands crowned Charlemagne emperor, using an
unprecedented right assumed by pope Leo III on Christmas Day, 800. With the
pope™s immediate genu¬‚ection before Charlemagne in homage,20 the theocratic
powers of Charlemagne as Vicar of Christ bound his legitimacy to that of Rome
and the futurist vision of the continuing Roman Empire as the ¬nal empire of
all time, believed to have been prophesied by Daniel in the Old Testament.21 Yet
pagan Germanic rituals remained. Christianity was largely passive and used to
garb pagan superstitions.22 This is analogous, perhaps, to the ˜glocalization™ we
have already seen of the Sapeurs of the Congo appropriating the Western, glob-
ally projected, image of the white coat of the medical profession to bolster the
prestige of the witch doctor.23
Charlemagne™s ˜kingdom and empire were governed by an itinerant court
that journeyed incessantly from one domain to the next; by a number of
subordinate courts . . .; and by a network of perhaps 300 comitates or “coun-
ties” . . .™,24 each controlled by a pair of envoys, one lay and one clerical.25 A
comitatus was an assembly or general meeting of the population, where customs
were stated, sometimes reduced to writing and sometimes even changed, and
also where disputes might be settled. An imperial central court, the Aula Regis,
was able to in¬‚uence more local courts. Semi-professional judges (scabini)
heard inquests, as sworn inquests sought to replace blood feuds and trial by
ordeal.26 The Christian church spanned the continent and its diverse ethnic
identities and social ranks, providing ˜a supplementary structure of communi-
cation and leadership™, also seeing to some public needs such as welfare.27
An international executive class arose, as did centralised currency. Capitularies,
or collected royal edicts (in today™s terms, ˜statutes, orders, directions and regula-
tions™),28 encouraged uniform rules for church and state, although local customs
and leaders remained powerful. Previously unwritten customary laws were
recorded in writing.29 Johan Galtung has noted the similarity between the EU

19
See Einhard, ˜Life of Charlemagne™ in Cantor, Medieval Reader, pp. 97“103.
20
See Norman Davies, Europe: A History (London: Pimlico, 1997), pp. 301“2; Barbero,
Charlemagne, pp. 93“4.
21
See Spruyt, Sovereign State, pp. 43“4. On Charlemagne™s priestly status, see Barbero,
22
Charlemagne, pp. 141“4. Berman, Law and Revolution, pp. 66“7, 75.
23 24
See ch. 2, section 2.1.4, p. 32 above. Davies, Europe, p. 302.
25
Johan Galtung, The European Community: A Superpower in the Making (London: George Allen
& Unwin Ltd, 1973), p. 118. See too Berman, Law and Revolution, p. 89; Barbero,
Charlemagne, pp. 156“66.
26
See Alan Harding, Medieval Law and the Foundations of the State (Oxford: Oxford University
Press, 2002), pp. 33“8.
27
See Gianfranco Poggi, The State: Its Nature, Development and Prospects (Stanford: Stanford
28
University Press, 1990), p. 38. See van Caenegem, Private Law, pp. 21“4.
29
See Robinson, European Legal History, [1.9.4]. On the justice system generally, see Barbero,
Charlemagne, ch. 9.
84 A Holy Roman Empire


technocrats and the Carolingian aristocracy, and the EU parliamentarians who
represent the counterpart voice of God or authority as the Carolingian clerics had
done.30 Against this parallelism, the bureaucratic workings of the Carolingian
Empire bore little kin, as such, to the decentralised supranationalism of the EU.
Charlemagne sought to dominate Europe with only his own Frankish people,
making his vision an ˜anti-Europe™, in e¬ect.31
Amidst this purported universality, there were intractable political problems
at the tribal and moral level, particularly at the hands of Viking plunderers.
Carolingian strength declined soon after the demise of Charlemagne in 814.
The papacy could not rule centrally and power shifted to local courts, bishops
and dukes, which ¬lled the vacuum left by Charlemagne. Administrative tasks
were generally taken over by local counts, bishops and dukes, leaving behind
four major kingdoms: Italy, the West-Frankish kingdom (now France), the
East-Frankish kingdom (now Germany) and Burgundy.32 ˜[U]nending strife™
was to be the legacy of Charlemagne™s succession to his three grandsons.33


4.4 Christian moral and political universalism
After Christianity had been made the o¬cial religion of the Roman Empire by
imperial decree in 380, the papacy was given a legal complexion as a govern-
mental institution. Authority was conceived as emanating from God in legal
terms. An early theologian of Latin Christianity, a jurist named Tertullian, con-
tributed to the framing of Christian dogma in the form of legal maxims and
principles. The Latin translation in the late fourth and early ¬fth centuries of
the Hebrew Old Testament and the ancient Greek New Testament (the Vulgate
of St Jerome) “ although linguistically correct “ presented the Bible ˜in a thor-
oughly juristic garb (that of the Roman law) as far as matters concerning gov-
ernment were a¬ected™.34 From this developed, between the early ¬fth and the
late sixth centuries, what Walter Ullmann has termed the monarchic (or
descending) theme of authority, which was wielded by the pope and emperor
within their historically contested spheres.35


4.4.1 Peter™s papal legacy
With a constitutional importance which would be contested regularly through-
out the middle ages and ¬nally by the Protestants, papal monarchy was justi¬ed

30 31
Galtung, European Community, p. 118. Le Go¬, Europe, p. 29.
32 33
See Spruyt, Sovereign State, p. 135. Davies, Europe, pp. 306“8.
34
Walter Ullmann, Medieval Political Thought (Harmondsworth: Penguin, 1975), p. 21 and his
Law and Politics in the Middle Ages (London: Sources of History Ltd, 1975), pp. 119“20.
35
See Ullmann, Medieval Political Thought, p. 22; and his ˜The Medieval Papal Court as an
International Tribunal™ (1971) 11 Virginia Journal of International Law 356“71. The
determinism of his model is problematic in light of medieval political complexity: see e.g.
Antony Black, Political Thought in Europe, 1250“1450 (Cambridge: Cambridge University
Press, 1992), p. 201.
85 The original European community


by appeal to a passage in the Gospel of Matthew, where Christ gave Peter the
keys to the kingdom of heaven.
Thou art Peter and upon this rock I will build my church; and the gates of hell
shall not prevail against it. And I will give unto thee the keys of the kingdom of
heaven: and whatsoever thou shalt bind on earth shall be bound in heaven: and
whatsoever thou shalt loose on earth shall be loosed in heaven.36

The bequeathal to the papacy of Peter™s keys to heaven was grounded in the
Epistola Clementis, a dubious letter from the end of the second century, pur-
portedly written by Pope Clement I to James, the brother of Christ. In the face
of approaching death and in front of the Roman community, Peter handed over
his powers to bind and loose to Clement; although this letter is problematic, as
Pope Linus apparently followed Peter, not Clement. Nonetheless, the Roman
law of inheritance could vindicate and elaborate the papal monarchy and its
succession. The papal powers of binding and loosing were treated like assets and
liabilities in Roman law, capable of transmission to an heir. The doctrine
founded by Pope Leo (440“61) posited that ˜no pope succeeded his immediate
predecessor but succeeded St Peter directly . . .™ From this, a separation of o¬ce
and o¬ce-holder or person could be envisaged, and governmental action could
still be valid no matter what the characteristics of the person who held the o¬ce,
so long as the decree emanated validly from a properly elected o¬ce-holder.37
A political basis to government and authority was therefore conceived
through law. It was not only theological, as Christ had given all of the disciples
the power to bind and loose.38 It also had Roman law legitimacy. Political
church government therefore based its claims to legitimacy at the interior end
of the Space Axis of the Space“Time Matrix, morally through the words of
sacred theological texts appealing to individuals. The church also sought legit-
imacy at the exterior end of the Space Axis and conservative end of the Time
Axis through historical and legal texts outside the experience and knowledge of
most individuals. In this descending model of authority, there were no indige-
nous powers; all power was derived from the pope or law-giver, as a symbol for
the divine order or the objective truth. The members of the church in this
scheme had no power, and the authority of the church came from God. Paul™s
words, ˜what I am, I am by the grace of God™, promoted this view.39


4.4.2 ˜Two Swords™ legal pluralism
The plural jurisdictions of emperor and pope were the subject of a constitution
grounded in the ultimate reality and meaning expressed in theology. Papal
authority in worldly a¬airs was derived from Christ™s statement to Pontius
Pilate: ˜Thou couldest have no power at all against me, except it were given thee


36 37
Matthew 16: 18“19 (KJV). Ullmann, Medieval Political Thought, pp. 23“7.
38 39
Matthew 18: 18“20. See Ullmann, Medieval Political Thought, pp. 28“30.
86 A Holy Roman Empire


from above.™40 This power was conceded as a matter of grace by divinity to
one worthy to wield power, not as of the recipient™s right. Broader political sig-
ni¬cance attached to this theory of government. Power was thought to ¬‚ow
down from the king to those of lower governmental rank, conceded by the
king by ˜the exercise of God™s will and pleasure™, buttressed by Old Testament
sources.41
Originating in papal“imperial constitutionalism, the ˜Two Swords™ constitu-
tional theory of government developed and grew later in medieval Europe. The
Two Swords theory was based upon chapter 22 of the Gospel of Luke. Just after
a dialogue between Christ and the disciples in which Christ foretold of his
imminent arrest, Christ was thought to have inferred that two swords were
enough for the disciples to use in defence. (That interpretation is problematic
and for the most part rejected by theologians today.)42 Immediately following,
whilst Christ was being arrested, Christ commanded a disciple (Peter no less,
recorded in John 18: 11) to put the sword back after the disciple had cut o¬ the
ear of a slave. Christ then healed the slave™s ear. This chapter was taken to be the
foundation for two world forces, because not only could Christ make heavenly
decrees but he had authority to command earthly forces too.
Constantine, in 325 at the council of Nicea, told the bishops that they were
bishops for the internal matters, being matters of spirit and scriptural theol-
ogy “ the sacramental, charismatic and pneumatic. Constantine declared
himself bishop of the external, by which he meant ˜the legal, organizational,
administrative, and purely external arrangements and management of
Christianity™.43 This political theology avowedly catered to both the internal and
external social tendencies on the Space Axis of the Space“Time Matrix.
No small discourse developed about the jurisdictional impact of these con-
cepts, which contained church and state posturing into the later middle ages.
Bringing the future dimension of the Time Axis into the constitution, Pope
Gelasius I (492“6) articulated his position to the Emperor Anastasius:
There are two things, most august emperor, by which this world is chie¬‚y ruled:
the sacred authority of the priesthood and the royal power. Of these two, the


40
John 19: 11 (KJV). See generally Lester L. Field, Liberty, Dominion, and the Two Swords: On the
Origins of Western Political Theology (180“398) (Notre Dame: University of Notre Dame Press,
1998).
41
Walter Ullmann, The Church and the Law in the Earlier Middle Ages: Selected Essays (London:
Variorum Reprints, 1975), III, pp. 190“3.
42
At the disciples™ thoughts of physical resistance and their comment ˜Lord, behold there are two
swords™, Christ responded ˜It is enough.™ Modern theological interpretation regards Christ™s
statement as an abrupt dismissal of the disciples™ lack of immediate insight into the Christian
message. Medieval commentators, however, sought in the style of their Latin fathers to
uncover any mystical teachings which the text might be concealing “ hence the justi¬cation for
the constitutional theory of the two powers. See J. A. Watt, ˜Spiritual and Temporal Powers™ in
J. H. Burns (ed.), The Cambridge History of Medieval Political Thought c.350“c.1450
(Cambridge: Cambridge University Press, 1988), p. 370.
43
Ullmann, Medieval Political Thought, p. 36.
87 The original European community


priests carry the greater weight, because they will have to render account in the
divine judgment even for the kings of men.44 [italics added]

If the bishops obeyed the imperial laws, established by divine disposition of royal
powers, how much more then, it was thought by the church, should the imperial
order obey the bishops, who had been invested with administering the sacred
mysteries of religion for preparation of the future world. Gelasius insisted on the
pope™s exclusive power, to bind and loose, and on the restriction of the emperor™s
power, which operated within the pope™s superior authority.45 This is sometimes
referred to as the Gelasian doctrine. This did not stop the empire from making
laws for exterior political aspects of the church, but it did leave the sacred mys-
teries of interior moral life, such as the sacrament of marriage or the eucharist
(communion mass), to the clergy. This was satisfactory for Gelasius, as he ˜had no
intention of laying claim to a share in secular government™, accepting as he was of
the Augustinian gulf between heaven and earth. Essentially this policy remained
until the eleventh century, despite deviations, supported by the Donation of
Constantine.46 Although not taken very seriously, this document, forged in the
mid eighth century, purported to show that the Emperor Constantine had given
Pope Sylvester I rule over Rome and its western possessions, authorising the
papacy to crown emperors and make some claim to in¬‚uence in secular life.47
Amidst this pluralism, Christian monotheism suggested that, just as there
was only one God in heaven, there could only be one monarchical ruler on
earth, in an ˜imperial theology™ of ˜one God, one Empire, one church™, the
emperor being viewed as ˜Christ™s vicegerent on Earth™.48 As the pope later was,49
the emperor was regarded as the living law “ a descending notion of living law.50
Imperial laws would be read out to the subjects, who listened ˜in sacred silence™
with the same awe and reverence accorded to holy scripture.51 Until the tenth
and eleventh centuries, European royal powers interfered in religious doctrine
as well, amidst a decline in papal prestige.52 Even then, though, amidst the
radical transformations of the Papal Revolution, the Two Swords theory was
really just adjusted in order to deal with the corrupt, secular in¬ltration of the
spiritual power. There were still dualistic constitutional, jurisdictional limits to
both spiritual and secular powers until about the fourteenth century.53 This is
well expressed by A. J. Carlyle:

44
Quoted in Gerd Tellenbach, Church, State and Christian Society at the Time of the Investiture
Contest, trans. R. F. Bennett (Oxford: Basil Blackwell, 1948), p. 33.
45 46
Ullmann, Medieval Political Thought, p. 41. Tellenbach, Church, pp. 36“7, 68“9.
47 48
See Barber, Two Cities, pp. 102“3. Tellenbach, Church, p. 33.
49
The pope was regarded as lex animata in Roman law, as was any monarch making the claim:
see K. Pennington, ˜Law, Legislative Authority, and Theories of Government, 1150“1300™ in
J. H. Burns (ed.), The Cambridge History of Medieval Political Thought c.350“1450 (Cambridge:
Cambridge University Press, 1988), p. 434.
50
We might regard this as an inversion of what Eugen Ehrlich was to describe in his (ascending)
notion of the ˜living law™ of nineteenth-century Western European communal relationships.
51
See ch. 3, section 3.2.1, pp. 63“4 above. Ullmann, Medieval Political Thought, p. 33.
52 53
Berman, Law and Revolution, pp. 92“3. Watt, ˜Spiritual and Temporal Powers™, p. 415.
88 A Holy Roman Empire


To the Western Church it was in the main clear that there were two great author-
ities in the world, not one, that the Spiritual Power was in its own sphere inde-
pendent of the temporal, while it did not doubt that the Temporal Power was
also independent and supreme in its sphere . . . This conception of the two
autonomous authorities existing in human society, each supreme, each obedient,
is the principle of society which the Fathers handed down to the Middle Ages, not
any conception of a unity founded upon the supremacy of one or other of the
powers.54

The spiritual“secular powers debate recognised the internal and external
construction of human normativity, highlighted in the discussion above,
within similar internal“external terms propounded of the Space Axis in our
Space“Time Matrix. Within the sphere of its alliances, which included kings
and emperors, the papacy had political in¬‚uence. That in¬‚uence was politically
unreliable and swayed with the political fortunes of medieval Europe. At the
interior level, that power was spawning a complex, culturally compelling moral-
ity which was grounded in a normative history with a salvationist vision for the
future, susceptible to intellectual (theological and legal) enquiry at the exterior
level. Whilst the papal and imperial ideas of authority were similar, the imper-
ial authority was grounded more externally in historical sources and Roman
law, compared with the legally cloaked, biblical reliance of the papacy, which
was more aspiring to personal, moral allegiance. All four orientations of the
Space“Time Matrix were being called upon in this emerging universalism,
which would compete with the feudal diversity of Europe. In this sense, it is pos-
sible to consider Two Swords constitutionalism as a type of legal pluralism, fea-
turing coexisting legal systems in the same territory.


4.5 Feudal moral and political diversity
Feudal diversity was extremely compelling in its own way. Important lessons for
legal authority are to be learned from the feudal constitution, especially in rela-
tion to the interior construction of moral attitudes to law through reciprocal
rights and duties which were lived and not just preached or claimed.
Feudal society inspired a more moral and cultural allegiance on the interior
orientation of the Space“Time Matrix. The paradigmatic form of political
organisation in the early middle ages was the Germanic kingdom, which was ˜in
some ways the complete antithesis of a modern state™. The modern state is char-
acteristically detached from moral allegiance and requires coercion to obtain
obedience to law. The very early Germanic kingdom, on the other hand, ˜lacking
continuity in time and stability in space™, was based on loyalties to persons, not
impersonal institutions. The medievals recognised the authority of a certain
man or family with hereditary claim to kingship to deal with emergencies, not
a legal or administrative system. Security came from family, neighbourhood

54
Quoted in Watt, ˜Spiritual and Temporal Powers™, p. 367.
89 The original European community


and lord, not from the king. Later, in the Frankish kingdom of the eighth and
ninth centuries, and the Anglo-Saxon kingdom of the tenth and eleventh cen-
turies, despite a general kingly duty to preserve peace and do justice through
uniform systems of local courts, basic social and economic structures remained
mainly local and familial, and royal o¬cials ˜tended to become leaders of
autonomous local communities rather than agents of central authority™.55


4.5.1 Ritual, meaning and time
The ritual and meaning of homage demonstrates the nature of authority asso-
ciated with feudalism and the source of its moral allegiance. Historian Marc
Bloch provides examples of di¬erent types of ceremony establishing and rein-
forcing the personal nature of authority which permeated medieval relation-
ships and the emerging notions of legal authority. The subordination of one
individual to another, in turn subordinated to others “ subinfeudation “ per-
meated the whole life of society. The Germanic ritual of homage has been
described by Bloch thus:
Imagine two men face to face; one wishing to serve, the other willing or anxious
to be served. The former puts his hands together and places them, thus joined,
between the hands of the other man “ a plain symbol of submission, the signi¬-
cance of which was sometimes further emphasized by a kneeling posture. At the
same time, the person pro¬ering his hands utters a few words “ a very short dec-
laration “ by which he acknowledges himself to be the ˜man™ of the person facing
him. Then chief and subordinate kiss each other on the mouth, symbolizing
accord and friendship.56

The superior was known as the ˜lord™; the subordinate known more commonly
today as the ˜vassal™. Fealty was later a superimposed Christian ritual in
Carolingian times, a time in which promises could be scarcely valid unless God
were guarantor. This second rite required the placing of hands on the Gospels
or on relics. Homage was always performed ¬rst in the ceremony, establishing
the relationship of vassalage and the connoted pledge of dependence and pro-
tection on each part. Fealty, often without a corresponding oath from the lord,
could be repeated more than once without the rite of homage given in the ¬rst
place.57
In the more contractual, existential society of today, individual mortality
brings a ¬nality with which medieval notions of individual afterlife and com-
munal continuity were incompatible. Homage and fealty are to be distinguished
from modern contractual relations which terminate upon death, or, as a matter

55
Joseph R. Strayer, On the Medieval Origins of the Modern State (Princeton: Princeton
University Press, 1970), pp. 13“15.
56
Marc Bloch, Feudal Society, trans. L. A. Manyon (London: Routlege & Kegan Paul, 1942),
pp. 145“6. For a French charter or written contract of fealty, see Cantor, Medieval Reader,
pp. 21“2. A detailed chapter on the laws of ˜private allegiance™ at this time is to be found in
57
Lupoi, Origins, pp. 321“67. Bloch, Feudal Society, p. 146.
90 A Holy Roman Empire


of the English common law rule against perpetuities, within twenty-one years
of the death of a ˜life in being™. In practice, vassalage became mostly hereditary,
although the ceremony would be conducted anew for the surviving son.58
Medieval legal authority occurred within a fairly stationary view of time; a view
of the future upon which was projected the present structure of social relation-
ships, re¬‚ected in the rituals and laws described.
The interior, moral allegiance “ the heartfelt allegiance “ to this pattern of
social relationship can scarcely be imagined today, in the industrialised world.
To disregard the bond of vassalage was a terrible sin. The devotion of the vassal
to his lord was the model upon which the Proven§al poets ˜based their concep-
tion of the fealty of the perfect lover™ when they invented courtly love.59
Excellent ¬ctitious examples of such deep and loving relationships amongst
men, with thematic historical reality,60 are to be found for the modern reader
(and now movie-goer) in The Lord of the Rings, by former Oxford Professor of
Anglo-Saxon, J. R. R. Tolkien.61 Although vassalage could become meaningless,
˜the fealty of the vassal survived in all its freshness . . . [W]hen the old rites were
¬nally outmoded, it was replaced . . . by other forms of personal dependence.™62
Those other forms of dependence could later be found in the ties of the manor
and villeinage.
The ceremony of making a knight “ the process of ˜dubbing™ a knight “ is
interesting for the model it provides for the creation of moral allegiance and
cultural signi¬cance.
The ritual consisted of several acts. To the candidate, who as a rule was scarcely
more than a boy, an older knight ¬rst of all handed over the arms symbolic of his
future status; in particular, he girded on his sword. Then, almost invariably, this
sponsor administered a heavy blow with the ¬‚at of his hand on the young man™s
neck or cheek.63

˜Dubbing to knighthood™ was connected with the mentality of the initiation cer-
emony practised in many di¬erent types of cultures, providing entry into adult-
hood and the assumption of responsibility. The blow to the head was either a
test of strength and/or ˜a method of making an impression on the memory, so
that . . . the young man would remember his “promise” for the rest of his life™.
It is likely to have been, whatever its origins, a device for maintaining memory;

58 59
Ibid., p. 147. Ibid., pp. 232“3.
60
See Norman F. Cantor, Inventing the Middle Ages: The Lives, Works, and Ideas of the Great
Medievalists of the Twentieth Century (New York: Quill William Morrow, 1991), pp. 226“33.
˜Tolkien is [F.W.] Maitland™s successor as an archaeologist of medieval society™ (p. 232).
61
See J. R. R. Tolkien, The Lord of the Rings [1954] (London: HarperCollins Publishers, 1997), in
particular part III, The Return of the King. Pippin pledges ˜fealty and service to Gondor, and to
the Lord and Steward of the realm™ the Lord Denethor (pp. 739“40); and Merry, ˜[f]illed
suddenly with love for this old man™ laid his sword on the lap of Th©oden King, and received
the king™s blessing (p. 760). The relationship between Frodo and Sam appears more in the
nature of an inherited manorial relationship, still demonstrating a relationship of love more
than mere friendship by today™s standards.
62 63
Bloch, Feudal Society, pp. 236“8. Ibid., p. 312.
91 The original European community


˜a box on the ear was one of the commonest methods, sanctioned by the legal
customs of the time, of ensuring the recollection of certain legal acts “ though
it is true that it was in¬‚icted on the witnesses and not on the parties them-
selves™;64 so too was dunking in a river or the giving of a ˜resounding slap™.65
Indubitably, this practice attracted a signi¬cance or allegiance to authority, rare
by today™s standards, and perhaps thankfully so.
If we can temporarily suspend our preconceptions of cruelty, the signi¬cance
of the ritual should not be dismissed. It is a counter-model to the emerging
globally projected consumer society, which seems to thrive on constant stimu-
lation, short memory and legal and normative disenchantment “ in other
words, an absence of meaning. For its ability to foster individual allegiance, the
feudal cultural model will be of value to a normative jurisprudence.


4.5.2 Parcellised sovereignty, economy and space
Land, comprising the ¬ef which was from the lord™s estate, or the allod which
was independent, was not held in the modern form, the title to which transmits
like a commodity. There could be ˜multiple bearers of rights in the same land™,
and ˜future interests™ of land could be held by di¬erent people contingent, for
example, upon the survivorship of fellow knights; various persons, born and
unborn, could have ˜rights of possession, use, disposition, and control of prop-
erty™.66 Ownership of land was therefore based very much upon personal rela-
tionships. In Perry Anderson™s words, there was ˜organic unity of economy and
polity, paradoxically distributed in a chain of parcellized sovereignties through-
out the social formation™.67 That is, the economy and the political organisation
of society were conceived as a naturally occurring phenomenon, governed by
interwoven sources of authority. As such, land and labour were neither com-
modi¬ed nor traded at an objective market price.
The term ˜parcellization of sovereignty™ was coined speci¬cally by Anderson
in his analysis of the feudal mode of production. It describes the multifarious,
interconnecting sources and networks of authority governing medieval
European society. ˜The consequence of such a system was that political sover-
eignty was never focused in a single centre. The functions of the State were dis-
integrated in a vertical allocation downwards, at each level of which political
and economic relations were, on the other hand, integrated.™68 The lord and
ultimately the monarch were protectors and supervisors of production, the
way of life, and religion, in social worlds which possessed inherent order,

64
Ibid., p. 313.
65
Martin van Creveld, The Rise and Decline of the State (Cambridge: Cambridge University Press,
1999), p. 143. A related ritual survived until recently in Catholic Church con¬rmation
ceremonies, in which the bishop slapped con¬rmees on the cheek.
66
Berman, Law and Revolution, pp. 312“13.
67
Perry Anderson, Lineages of the Absolutist State (London: NLB, 1974), p. 19.
68
Perry Anderson, Passages from Antiquity to Feudalism (London: NLB, 1974), p. 148.
92 A Holy Roman Empire


maintained by law. Kings, although supposed in theory to be mightier than any
of their subjects, were often vassals of other men for part of the royal lands, and
˜a vassal might be caught in crosscutting obligations which are very di¬cult to
comprehend within our understanding of “international” relations™.69 Due also
to the practice of intermarriage amongst foreign royal families, kings could
possess land in geographically diverse and separate places.70 There was a ˜dis-
persal of coercion™, for whereas the church in the classical Roman Empire had
been integrated into the imperial machinery from Constantine onwards, the
medieval church was an autonomous institution, along with other competing
institutions such as manor, crown, feudal demesne and town. There was neither
need nor place for an across-the-board executive (because authority was not
unitary) or a legislature (law was anyway declared, not made or innovated).71
Matters fell before one jurisdiction or another, although there could be con¬‚ict.
Oral customs, together with old Roman law texts and treatises, provided the
material for the ¬nding of the law by induction (that is, by extracting a propos-
ition from many supporting sources). Government therefore, rather than being
something the authority of which touched every modern person like a com-
puter attached to a network, instead radiated authority along branches of a tree
to other lesser and then lesser lords who had to keep the smaller branches and
leaves to their duty “ superimposing the mass irrelevance of the peasantry
which was under private control.
The term ˜parcellized sovereignty™, as used by Anderson, is posited in the
context of an economy which he asserts was not parcellised. In a change of
emphasis from his usage of the word ˜parcellisation™, which is valuable for its
concision, it also does well to consider the medieval economy as parcellised.
This is because actual medieval markets were fragmented, soil-based and terri-
torial. Subsistence production for direct consumption and barter, not market
exchange, predominated.72 This is not to dispute Anderson™s observation that,
from a functional perspective, the economy relied upon serfdom as a universal
mode of production in a regularly occurring political hierarchy. It is to say that
the practical institution of economic activity was carried out across, for the
most part, disunited, discriminating and parochial markets, where in fact
they did occur. Spiritual belief in the Christian God was projected universally.
˜The realm of faith is the only universal and unifying home for the scattered
villages of the tenth century.™73 This will be of utmost relevance to our later
understanding of authority at the end of the second millennium, in the inverse
context of a uni¬ed economy with its challenge of Mammon, and now parcel-
lised notions of God and spirituality.74

69 70
Spruyt, Sovereign State, p. 39. van Creveld, Rise and Decline, pp. 88“9.
71
See Anderson, Antiquity to Feudalism, p. 153.
72
Benno Teschke, ˜Geopolitical Relations in the European Middle Ages: History and Theory™
(1998) 52 International Organization 325“58, 339“42.
73
Eugen Rosenstock-Huessy, Out of Revolution: Autobiography of Western Man [1938]
74
(Providence and Oxford: Berg, 1993), p. 501. See ch. 10.6, pp. 247“51 below.
93 The original European community


Explained in terms of our concept of the sphere of containable disruption,75
the many small sovereignties were logically testament to the inability of one
organisation to be able to maintain to its own design a single order in a large
territory the likes of a modern state. Transport networks were poorly developed,
and there were many local dialects and currencies (where they were even used,
as opposed to barter) in, as we have seen, parcellised economies. In short, inter-
connection was poor. What violence could be mustered was localised beneath
weak kings and above the abilities of freemen: military technology was chie¬‚y
to be found in expensive heavy-shock cavalry, limited to wealthy nobles who
became rivals of central authority.76
Deserving of remark is the widespread disenfranchisement of the bulk of
the medieval population. The serfs “ agrarian peasants “ had no input into
political processes. Paternalistic political meaning was imposed upon them.
Out-of-context beatitudes such as ˜the meek shall inherit the earth™ and the sup-
posedly divinely ordained submission of the peasantry kept the serfs under the
thumb of feudal society until the development of cities provided them with a
release “ which was to take many centuries. What is worth salvaging from this
¬rst medieval era is the legal meaning available to those who did, in e¬ect,
˜belong™ to society, primarily the nobility, clergy and freemen.


4.6 Lessons for a globalist jurisprudence
In early medieval society, there were many di¬erent sovereignties and social
groupings, with both particular and universalist norms. The original European
community possessed a very rich normative atmosphere marked by personal rela-
tions rather than impersonal o¬ces. In the absence of a medieval state as such, it
is possible to speak of medieval public authority in modern terms as ˜privatised™77
(although that falsely presupposes the naturalness of state public authority).
Competing jurisdictions, numerous legal systems in a given territorial space and
universalist laws transcending particular territorial laws were not therefore new to
the world at the end of the second millennium. As observed by Thomas M. Franck,
rich and divided loyalties characterised the medieval social landscape in a manner
similar to today™s ˜global system increasingly characterised by overlapping com-
munities and multivariegated personal loyalties yielding more complex personal
identities™.78 The medieval epoch demonstrates the possibilities for internal alle-
giances to be forged across competing interests, so crucial for meaningful law.
Conceptually, ˜empire™ appears to be the closest medieval counterpart to the
modern ¬xation upon political entities now ˜united™ or purporting to ˜unite™ in

75 76
See ch. 2, section 2.4, pp. 42“8 above. See Spruyt, Sovereign State, p. 37.
77
See Jan Zielonka, Europe as Empire: The Nature of the Enlarged European Union (Oxford:
Oxford University Press, 2006), p. 10.
78
Thomas M. Franck, The Empowered Self: Law and Society in the Age of Individualism (Oxford:
Oxford University Press, 1999), p. 99; cf. Susan Reynolds, Kingdoms and Communities in
Western Europe, 900“1300 (Oxford: Clarendon Press, 2nd edn 1997), pp. 330“1.
94 A Holy Roman Empire


their diversity, such as the United Kingdom of Great Britain and Northern
Ireland, the United States of America, the United Nations and the European
Union. At least eight di¬erent meanings can be attributed to the medieval idea
of ˜empire™ of this time and forthcoming centuries, concerning the relationships
amongst papal, imperial and kingly authorities with their business of peace,
conquest, moral government, spirituality and eschatology.79 Today™s competing
governmental structures inside, across and above territories share parallel polit-
ical and welfare concerns to enable the perceived proper ordering of human
societies across diverse, naturally occurring communities.80
At the beginning of the second millennium, open con¬‚ict grew between the
church, empire and local rulers. Competing universalist papal and imperial
aspirations would extend further over the diverse parcellised sovereignties of
lords and kings, with their uncoordinated secular governance. The consequence
would be a revolution not only in the political status quo, but also in the idea
and practice of law and its potential for allegiance.

79
See James Muldoon, Empire and Order: The Concept of Empire, 800“1800 (New York: St
Martin™s Press, Inc., 1999), pp. 15“17.
80
On modern imperial movements, see Jean L. Cohen, ˜Whose Sovereignty?: Empire Versus
International Law™ and Jebediah Purdy, ˜The New Liberal Imperialism: Assessing the
Arguments™, both in Christian Barry and Thomas W. Pogge (eds.), Global Institutions and
Responsibilities: Achieving Global Justice (Malden: Blackwell Publishing, 2005).
5

Universal law and the Papal Revolution




All authority in medieval Christendom was thought to derive ultimately from
God . . . It might therefore seem fanciful to contemplate a return to the medieval
model, but it is not fanciful to imagine that there might develop a modern and
secular counterpart of it that embodies its central characteristics: a system of
overlapping authority and multiple loyalty.
Hedley Bull1

For the advancement of a general, globalist jurisprudence, the legal achieve-
ment of the Papal Revolution is pre-eminent. The Papal Revolution instituted a
mode of law with the possibility for universal application yet subjective alle-
giance across diverse jurisdictions in Western Europe. That we might there dis-
cover the key to a globalist jurisprudence so rusted yet capable of opening new
doors may not be surprising. ˜[I]n no other age, since the classical days of
Roman law, has so large a part of the sum total of intellectual endeavour been
devoted to jurisprudence.™2
Grand in scale, the new mode of law was conceived to coexist with other legal
systems, in the context of a legal vision for world redemption. That is not to say
that the everyday reality of canon and civil law met these ideals. Western legal
science nonetheless evolved with that encoded facility. The crucial ˜ultimate
reality and meaning™ which legitimated this social system was the Judeo-Christian
God. Miracles and holiness demonstrated by leaders back then3 occupied a
similar status to politicians today justifying their worthiness by delivering eco-
nomic prosperity, highlighting the nature of the two millennial authorities. Just
as there was a World Revolution associated with twentieth-century universalist

11
The Anarchical Society: A Study of Order in World Politics (London: Macmillan, 1977), p. 254.
On the ˜new medievalism™, see Jörg Friedrichs, ˜The Meaning of New Medievalism™ (2001) 7
European Journal of International Relations 475“502.
12
Pollock and Maitland, History of English Law, quoted in Charles Homer Haskins, The
Renaissance of the Twelfth Century (Cambridge, MA: Harvard University Press, 1927 reprinted
1993), p. 194.
13
See R. I. Moore, The First European Revolution: 970“1215 (Oxford: Blackwell, 2000), ch. 1;
So¬a Boesch Gajano, ˜The Use and Abuse of Miracles in Early Medieval Culture™ in Lester
K. Little and Barbara H. Rosenwein (eds.), Debating the Middle Ages: Issues and Readings
(Malden: Blackwell Publishers, 1998).
96 A Holy Roman Empire


norms, so too was there a revolution of Western European compass with univer-
salist norms in the late eleventh, early twelfth centuries.


5.1 Apocalypse
In the face of numerous collectives of allegiance at the beginning of the sec-
ond millennium, political power was severely contested. The collapse of the
Carolingian empire bifurcated the universalism of imperial constitutionalism.
Emerging from the collapse was a purported papal universality inherited by the
clans of the Roman aristocracy, and a purported imperial universality inherited
by the ¬‚uid Italian nobility and ultimately, from 962, the German sovereigns.4
So ended what is sometimes referred to as the ¬rst of the two feudal eras.
Profound social discord was characterised by the trust placed in the sword to
cure social ills. In the original European Community of the middle ages, vio-
lence played an important role in the economy. Plunder provided an opportu-
nity to prosper at a time when trade was elusive. The economy, as previously
discussed, was fragmented and disorganised and subject to localised and idio-
syncratic market controls “ a far cry from a nationally organised economy let
alone a global economy. Customary law could be used as a legal basis for ˜almost
every usurpation™ and law was taken into private hands in the manner of the
family blood feud. Men, quick as a point of honour to display animalistic
strength, ˜were emotionally insensitive to the spectacle of pain, and they had
small regard for human life, which they saw only as a transitory state before
Eternity™.5 The end of the world appeared nigh for some Christians who had
been waiting for heaven on earth since Christ when the early Christians had
foretold relief from the evil empires in the ¬rst century.6
Beginning in the tenth century, the Peace Movement was an attempt by certain
bishops ˜to organise peasants and other non-combatants into a sort of vigilante
association to repress the violence and pillaging of feudal lords™, lacking, though,
in success, because the lords were usually militarily superior. Fortunes of the
Movement improved when powerful lords took up the cause for political stabil-
ity. The church assumed a secondary role and simply sanctioned the lay rulers.7
Civil war was, however, to rage sporadically throughout Europe from 1075.
The premier European drama was unfolding in the wings. The high achieve-
ments which would follow gave rise to phrases such as ˜The Twelfth-century
Renaissance™, ˜The Making of the Middle Ages™, ˜The Rise of Europe™, ˜The
Flowering of Medieval Civilisation™ and ˜The Intellectual Expansion of Europe™.8
14
Marc Bloch, Feudal Society, trans. L. A. Manyon (London: Routlege & Kegan Paul, 1942),
5
p. 390. Ibid., p. 411.
16
See Richard Landes, ˜The Fear of an Apocalyptic Year 1000: Augustinian Historiography,
Medieval and Modern™ (2000) 75 Speculum 97“145.
17
Joseph R. Strayer, On the Medieval Origins of the Modern State (Princeton: Princeton
University Press, 1970), pp. 19“20. See too Alan Harding, Medieval Law and the Foundations of
the State (Oxford: Oxford University Press, 2002), ch. 4 and sources therein.
18
Norman Cantor (ed.), The Medieval Reader (New York: HarperPerennial, 1995), p. 87.
97 Universal law and the Papal Revolution


5.2 The Papal Revolution

5.2.1 Space: the reconciliation of morality and politics
Amidst the extraordinary a¬„iction of ˜tribulations and di¬culties™ causing
˜tranquillity and peace™ to be ˜wholly despaired of ™ (paraphrasing the Bishop of
Cologne)9 in this era, peace associations emerged, in meetings of bishops, led
by the Cluniac monks. (The monastery at Cluny was perhaps the prototype
multinational corporation, with branch monasteries throughout Europe10
including England.) Certain ideological beliefs sought institutional expression
in this chaotic society: for example, to kill a Christian is to kill Christ. Not only
was there a duty on the part of the church to protect its own members but there
was also a duty to protect the poor and wretched, who had been entrusted to
the church. Belief in the state, remembered from imperial times, tended to
oppose clerical interference in the temporal matter of peace, although, particu-
larly in France, the powerlessness of the monarchy was evident.11
On the Space Axis of the Space“Time Matrix, interior, popular movements
¬lled in for the imperial state. Special days in the calendar spread and drew pro-
hibitions on blood feuds (Sundays) and bans on violence, for example, over the
Easter period (known as the ˜Truce of God™);12 protection was extended to
church property, unarmed clerics, peasants™ livestock and later, merchants,
despite some exceptions in times of war (the ˜Peace of God™).13 These restric-
tions were developments in the ideology of the ˜Just War™.14 Peace decrees from
provincial church synods generally forbade, ˜under pain of excommunication,
any act of warfare or vengeance against clerics, pilgrims, merchants, Jews,
women, and peasants, as well as against ecclesiastical and agricultural prop-
erty™.15 Collective oaths of reconciliation and good conduct were undertaken in
the form of ˜pacts™, although these were not always voluntary, for the church
might take hostages and enforce a pledge of peace (for example, in Le Puy, 990).
These collective oaths played an important role in the later formation of cities,
guilds and corporate groups. Some of these communities set up militia and
appointed judges, arousing the jealousy of the temporal authorities and barons
and earls, although gradually some kings and princes sought to establish them-
selves as ˜great peacemakers™ in their own spheres (for example, in Provence,

19
Bishop of Cologne, ˜The Truce of God™ in Cantor (ed.), Medieval Reader, p. 89.
10
Eugen Rosenstock-Huessy, Out of Revolution: Autobiography of Western Man [1938]
11
(Providence and Oxford: Berg, 1993), p. 506. Strayer, Medieval Origins, p. 413.
12
Bishop of Cologne, ˜Truce of God™, pp. 89“90.
13
See Strayer, Medieval Origins, p. 414; Moore, First European Revolution, p. 8; and more
speci¬cally, e.g. Thomas Head, ˜The Development of the Peace of God in Aquitaine
(970“1005)™ (1999) 74 Speculum 656“86.
14
See O. F. Robinson, T. D. Fergus and W. F. Gordon, European Legal History: Sources and
Institutions (London: Butterworths, 1994), [5.6.1].
15
Harold J. Berman, Law and Revolution: The Formation of the Western Legal Tradition
(Cambridge, MA: Harvard University Press, 1983), p. 90.
98 A Holy Roman Empire


1226).16 A common, universalist Christianity was used to imply a family rela-
tionship17 at the moral, interior level of the Space Axis.
The institutional separation of the religious and political spheres had
declined. Gelasian doctrine, demarcating the ˜Two Swords™ constitutionalism of
separate spiritual and temporal spheres from centuries earlier,18 had been whit-
tled away by expedience. Kings, who had been considered ˜semi-religious
personages™, had appointed abbots, bishops and often popes, and under
Charlemagne, matters of theological doctrine had received royal intervention.19
Ecclesiastical o¬ces (bene¬ces) were mostly appointed by secular authorities
(that is, by emperor, kings and feudal lords). These church o¬ces had tended to
be tied to revenues and land services, which were lucrative and often assigned
by the secular powers to their relatives and friends, and bought and sold (the
practice of ˜simony™). Furthermore, integration of church and state had been
aided through clerical marriages (a practice known as ˜nicolaism™), whereby
priests married into secular rulers™ families, and clerics became involved in
secular administration. The church could not extricate its clergy from the
secular powers, nor could the secular powers be extricated from the church.20
The emperors had supported the church reformers attacking the corruption
of feudal and local rulers, the emperors in turn taking from the Roman nobil-
ity the power to appoint the pope. As the eleventh century progressed, the spiri-
tual power of the emperor became too much a part of the problem. The Papal
Revolution can be dated from 1075, when wayward priests were boycotted by
Pope Gregory VII and a charter of his emerging mindset,21 the Dictates of the
Pope (Dictatus Papae), written. Followed by the ˜Investiture Wars™, it was not
until the Concordat of Worms (1122) in the German provinces and the
Concordat of Bec (1107) for England and Normandy, that the constitutional
spheres were recast between church and state in a compromise.22 ˜Peace™ and
˜concord™ were key words in Gregory™s vocabulary.23
In addition to the Cluniac achievement of clerical celibacy and the prohibi-
tion on sales of bene¬ces, the political and legal supremacy of the papacy was
declared. The papacy wrested its right to elect bishops and abbots, and its
freedom from imperial investiture of the bishops and abbots with ring and sta¬
symbolising their power to care for souls. The papacy conceded imperial inter-
vention in disputed elections (in e¬ect giving both pope and emperor a power
of veto) and also conceded the homage of the prelate to the secular authority
prior to consecration. The ˜supranational™ jurisdiction claimed by the church


16 17
Bloch, Feudal Society, pp. 415“17. Robinson, European Legal History, [5.6.3].
18 19
See ch. 4, section 4.4.2, pp. 85“8 above. Strayer, Medieval Origins, p. 20.
20
Berman, Law and Revolution, pp. 93“4.
21
See H. E. J. Cowdrey, Pope Gregory VII: 1073“1085 (Oxford: Clarendon Press, 1998), pp. 502“7.
22
See Uta-Renate Blumenthal, The Investiture Controversy: Church and Monarchy from the Ninth
to the Twelfth Century (Philadelphia: University of Pennsylvania Press, 1988), pp. 142“59
(Bec), 167“73 (Worms); Berman, Law and Revolution, pp. 94“9.
23
See Cowdrey, Pope Gregory, pp. 576“83.
99 Universal law and the Papal Revolution


was established, the pope being ˜judge ordinary of all persons™, and it came to
exercise ˜the legislative, administrative, and judicial powers of a modern state™,
although sacred and relatively unsecularised,24 with shared jurisdiction. Papal
supranationality will be considered later in this chapter.
In the wake of the revolution, the legal order of the church became subject to
objective systematisation, in Gratian™s Concordance of Discordant Canons (com-
monly called the Decretum). Exterior and rationally conceived though it was on
the Space Axis, its interior, moral inspiration at the other end of the Space Axis
is evidenced by its author™s conception of it as theologia practica externa “ that
is, practical, external theology.25 Published in 1140 and in use until 1917 in
Catholic ecclesiastical courts, the Decretum Gratiani was the ¬rst modern sys-
tematisation of law characteristic of the Western legal tradition. Legal implica-
tions of distinctions amongst divine law (including biblical laws), natural law,
human law, church law, princely law, enacted law and customary law were
explored, and the sources of law arranged in hierarchical order.26 These sources
of laws covered the Space Axis of the Space“Time Matrix; a recent monograph
has conveniently referred to Gratian™s ˜mastery of the exterior, public court of
justice and the interior, sacramental court of the confessional™ [italics added].
(This may be one reason why Gratian is apparently the only lawyer known to
be in Paradise, according to Dante in Paradiso.)27 That is, the systematisation
of interior norms such as divine and natural laws with princely and enacted
laws in e¬ect reconciled morally felt laws with politically imposed laws.
Systematisations spread from canon law to territorial laws, including English,
French, Italian and German systems. Law and legal authority did not come from
just one place, to be discussed in greater detail in chapter 6.
In political philosophy, the counterpart of Gratian was John of Salisbury.
Exterior, rationalising tendencies of the time were captured and endued with
momentum in his book Policraticus (1159), moderated by the interior, cultural
resort to scripture. The new legal systems were conceived as components in a
greater social system. This re¬‚ected a higher divine law (breach of which could
in some circumstances permit tyrannicide).28 It was at once international, con-
stitutional and private, for it was binding on individuals and their associa-
tions.29 Furthermore, his organic theory of government, whereby, for example,


24
Berman, Law and Revolution, pp. 99, 113“14.
25
See Franz Wieacker, A History of Private Law in Europe, With Particular Reference to Germany,
trans. Tony Weir (Oxford: Oxford University Press, 1995), p. 49.
26
See Berman, Law and Revolution, pp. 143“64.
27
See Anders Winroth, The Making of Gratian™s Decretum (Cambridge: Cambridge University
Press, 2000), pp. 1“2. Which particular Gratian is in heaven is not clear, as Winroth convincingly
suggests that the Decretum is not the product of one person, time and place (p. 193).
28
See John of Salisbury, Policraticus, trans. Cary J. Nederman (Cambridge: Cambridge University
Press, 1990), bk VIII, ch. XX.
29
John Dickinson, ˜Introduction: The Place of the Policraticus in the Development of Political
Thought™ in Policraticus: The Statesman™s Book of John of Salisbury (New York: Russell &
Russell, 1963), pp. xxix“xxx.
100 A Holy Roman Empire


the prince is head, the priesthood soul, the senate the heart and ¬nancial o¬cers
the stomach and intestines, whilst avowing origins in a now doubted work of
Plutarch, ˜traces back in part no doubt to the Christian identi¬cation of the
church with the body of Christ™.30
Girded by Christian notions of a community of believers and popular move-
ments bringing peace, the church, especially through the Cluniacs, was able to
repel secular in¬ltration into the spiritual arm of government through norms
with appeal at the cultural, moral, interior end of the Space“Time Matrix. That
spiritual arm, though a jurisdiction over souls, was to develop as a signi¬cant
political power, with a sophisticated, objective legal science at the exterior end
of the Space Axis, drawing on the permeating Western authority of the Bible to
inspire interior, cultural allegiance.31 To this extent it is possible to write of a
reconciliation of morality and politics sought by the jurisprudence consequent
to the Papal Revolution. Today, the relative freedom from tyranny enjoyed in
the West, at the expense of excessive legalism, may be a consequence of the
medieval facility for the conversion of exterior political and interior moral
problems into legal issues.32


5.2.2 Time: the pursuit of heaven on earth
The reformed Catholic church introduced, in a serious philosophical fashion,
a futurist, visionary aspect to exterior political authority. In Western Europe,
to this point, the previously prevailing Augustinian notion of time, since
the early ¬fth century, did not encompass a utopian role for the church in
the here-and-now other than to facilitate the social conditions for the faith-
ful to engage in an interior, privatised, moral striving for the better world
of the City of God.33 St Augustine had maintained that the church had to
forgo its present physical location in the (evil) times or saeculum (from which
derived the pejorative terms ˜temporal™ and ˜secular™), concentrating instead
upon the heavenly City of God.34 In a change of emphasis, the aim of the church
under Pope Gregory VII became to instigate this divine city on earth, through
law.
The church set out to reform both itself and the world by law. It established itself
as a visible, corporate, legal entity, independent of imperial, royal, feudal, and
urban authorities. Autonomous bodies of law were articulated, ¬rst within the
ecclesiastical polity and then within the various secular polities, in part to main-
tain the cohesion of each polity, in part to achieve the reform of each, in part to
keep an equilibrium among them all.35

30
Dickinson, ˜Introduction™, p. xx.; cf. 1 Corinthians 12.
31
See Susan Reynolds, Kingdoms and Communities in Western Europe, 900“1300 (Oxford:
Clarendon Press, 2nd edn 1997), pp. 5“7.
32
See Berman, Law and Revolution, pp. 223“4; Wieacker, History of Private Law, p. 7.
33
See St Augustine, City of God, trans. Henry Bettenson (London: Penguin, 1984).
34 35
See Berman, Law and Revolution, p. 110. Ibid., p. 83.
101 Universal law and the Papal Revolution


Innovation was no longer condemned per se. ˜History no longer mapped a
decline toward the end of the world but an ascent to the point at which time
would have run its course™, essential to the development of the concept of
Europe, according to Jacques Le Go¬.36 The reformers sought, no less, ˜the
Kingdom of God in the here and now™, based upon a return to the primitive
church.37 Amidst this millennial futurism on the Time Axis, history had also
provided law of a ˜timeless standard™ in the form of the recently rediscovered
text of Justinian™s Corpus Iuris Civilis “ a ˜revelation of law™ authoritative for all
legal thinkers by virtue of its ˜sacred origin in the Empire™.38
The spiritual precursor to universal human equality arose in this milieu. All
Souls™ Day was programmed into the church calendar on 2 November probably
sometime between 1024 and 1033, by St Odilo of Cluny in his ˜Statute
Concerning the Dead™.39 Associated with the future vision of the Last
Judgement, earthly diversities were united in the universal subjection to death
and judgement which all humans face. This new day of prayer for the souls of
the dead to qualify for heaven can be contrasted with the celebration of the
Saints on All Saints™ Day, 1 November “ that is, of God™s elect and chosen people
who found heaven, to whom the faithful sent their prayers. The timing of the
two rituals brought saints and sinners conceptually closer in the imagination. A
new acceptance of tombs in the town and village brought the dead closer to the
living.40 According to Eugen Rosentock-Huessy, ˜All Souls™ established the
solidarity of all souls from the beginning of the world to the end of time™. This
new celebration recognised that ˜everyone is a comrade in the army of death,
on equal terms with all souls™; it was ˜the Christian democracy of the Last
Judgement™.41 All souls faced doing penance for their sins “ their breaches of the
law “ after death, according to the new, temporal doctrine of purgatory, whilst
awaiting the Last Judgement.42 This new day of commemoration suggested
˜an empathic union between all sinners “ i.e., everyone “ living and dead™43
including the excommunicated;44 connected to ˜a global, meaningful structure
of time . . . with its universalist protection of the dead . . .™ [italics added].45

36
Jacques Le Go¬, The Birth of Europe, trans. Janet Lloyd (Oxford: Blackwell Publishing, 2005),
pp. 150“1.
37
Blumenthal, Investiture Controversy, p. 65; Berman, Law and Revolution, p. 118. See too H. E. J.
Cowdrey, The Cluniacs and the Gregorian Reform (Oxford: Clarendon Press, 1970), pp. 135“41;
Gerd Tellenbach, Church, State and Christian Society at the Time of the Investiture Contest,
trans. R. F. Bennett (Oxford: Basil Blackwell, 1948).
38
Wieacker, History of Private Law, pp. 30“1.
39
See Michael E. Hoenicke Moore, ˜Demons and the Battle for Souls at Cluny™ (2003) 32 Studies
40
in Religion/Sciences Religieuses 485“98, 487. See Le Go¬, Europe, pp. 51“2.
41
Rosenstock-Huessy, Out of Revolution, pp. 506“8.
42
See Berman, Law and Revolution, pp. 166“73.
43
Andrew Skotnicki, ˜God™s Prisoners: Penal Con¬nement and the Creation of Purgatory™ (2006)
22 Modern Theology 85“110, 104.
44
Dominique Iogna-Prat, ˜The Dead in the Celestial Bookkeeping of the Cluniac Monks Around
the Year 1000™ in Little and Rosenwein, Debating the Middle Ages, p. 349.
45
Moore, ˜Battle for Souls™, 492.
102 A Holy Roman Empire


The origins of the modern state reside in this religious and constitutional
endeavour “ an undertaking sown with the seeds of its own secularisation. Earth
became important in and of itself, as a matter of ultimate reality and meaning,
with politics and law to be taken seriously as a matter of religious commit-
ment. Sociological literature has generally regarded the studious pursuit of
Christianity and, in particular, Protestantism, as stimulants of secularisation.46
This is premissed upon the assumption that there are more ˜mystical™ and irra-
tional traditions than Christianity. Christianity, especially when scholasticism
was encountered, attempted to ground faith in reason and earthly perceptions.
Protestantism went even further, as shall be seen in chapter 7, marking a turning
point in the ultimate reality and meaning used to legitimate law in the Western
legal tradition.
Emerging from this revolution of European proportions, the church claimed
to represent an idealistic and universal notion of politics authorised by God and
scripture, appealing to interior legitimacy. Inspirational, universalist religious
ideology challenged, with the promise of peace and salvation, an unstable,
particularistic war of the worlds. Law, universally conceived, was to be used
for peace and the pursuit of ultimate reality and meaning, after revolution.
Conceptually, this will be juxtaposed in chapter 10 to the universalism of
modern human rights and free-trade laws challenging the sovereignty of the
diverse, unstable nation-states and societies associated with the apocalyptic
World Revolution.


5.3 Papal supranationality
The Roman Catholic church of the time possessed broadly accustomed consti-
tutional competences which attracted jurisdiction throughout Western Europe.
The basis of the church™s political power is worth noting, to understand its juris-
dictional power. As Bishop of Rome, the pope had the right to considerable
property in Italy. Payments were received from monasteries in consideration of
support against secular (as opposed to monastic) clergy; the pope could receive
annates (for example: one-third of the ¬rst year™s revenue of a new bene¬ce
given to a bishop); clergy might contribute subsidies; and the papacy might
impose taxes on laity and clergy. Militarily, armed retainers were often in the
service of monasteries and bishops.47 Importantly, the papacy also exercised a
virtual monopoly on literacy, rendering its services vital to secular rulers
who required laws and some degree of bureaucratic e¬ciency beyond that of
chiefdoms or feudal ¬efs.48 Interdiction and excommunication were very real

46
See e.g. Reid Mortensen, ˜The Theory Behind Secularisation™ (1993) 18 Bulletin of the
Australasian Society of Legal Philosophy 19“42, 23.
47
Hendrik Spruyt, The Sovereign State and its Competitors: An Analysis of Systems Change
(Princeton: Princeton University Press, 1994), pp. 45, 213.
48
See Haskins, Renaissance of the Twelfth Century, pp. 212“13; Martin van Creveld, The Rise and
Decline of the State (Cambridge: Cambridge University Press, 1999), p. 60.
103 Universal law and the Papal Revolution


coercive church powers which had the e¬ect of depriving an individual from
associating with Christians and from receiving the services of the clergy “
serious secular and spiritual impediments.49 The papacy could therefore enjoy
a relatively large sphere of containable disruption within which to regulate nor-
mative and social concerns, although that sphere was not territorially absolute
and it was contested.50 The jurisdictional power of the papacy is best under-
stood as ˜supranational™.
Supranationality is a term used most commonly in connection with the
European Union (see chapter 11 below). It stands for a constitutional division
of powers by which the supranational EU can issue a variety of styles of norms,
within its constitutional competence, which become laws within the Member
States. At an essential level, the concept is not new to Europe. There were no
nation-states as such in the Europe of the Papal Revolution, but there were prin-
cipalities and kingdoms which were to evolve into them. Leaving aside, for the
moment, signi¬cant di¬erences in legal technology and competences, the Papal
Revolution o¬ers a viable precedent for understanding the obvious global rele-
vance of supranationality as the centralised administration of universalist legal
norms in competition with more localised legal norms.


5.3.1 Non-territorially defined jurisdiction
Innocent IV (pope from 1243 to 1254) claimed that popes could judge not only
Christians but Jews who had violated the Old Testament where they had not
been punished by their own leaders. (He in fact ordered the burning of the
Talmud.) He also claimed the right to judge in¬dels who had breached natural
law.51 Papal jurisdiction was essentially a non-territorially de¬ned jurisdiction
over persons, exercised in relation to clergy and their households, students, cru-
saders, wretched persons, Jews in disputes involving Christians, and travellers
and merchants. Similarly, a subject-matter jurisdiction was exercised by the
church over spiritual matters, including administration of the sacraments, test-
aments, ecclesiastical bene¬ces and tithes, oaths and sins. Consequently, family
law (derived from the sacrament of marriage), wills and succession (from test-
aments), contract (from oaths), property law (from bene¬ces) and criminal
and tort law (from sins) could develop. Even a separate system of taxation was

49
Malcolm Barber, The Two Cities: Medieval Europe 1050“1320 (London: Routledge, 1992), p. 26;
Paul Vinogrado¬, ˜Historical Types of International Law™ reprinted in The Collected Papers of
Paul Vinogrado¬, 2 vols. (Oxford: Clarendon Press, 1928), vol. II, p. 287; R. H. Helmholz,
˜Excommunication in Twelfth-century England™ (1994“95) 11 Journal of Law and Religion
235“53 and his ˜Excommunication and the Angevin Leap Forward™ (1995) 7 Haskins Society
Journal 133“50 on the secularisation of the process.
50
See generally Walter Ullmann, ˜The Medieval Papal Court as an International Tribunal™ (1971)
11 Virginia Journal of International Law 356“71 (although exaggerating the harmony of the
papal jurisdiction).
51
James Muldoon, Popes, Lawyers, and In¬dels (Philadelphia: University of Pennsylvania Press,
1979), pp. 10“11.
104 A Holy Roman Empire


maintained by the church, as mentioned above, in the form of annates, subsi-
dies and direct taxes.52
Choice of law clauses in contracts could nominate the civil jurisdiction of the
church, through a procedure known as prorogation,53 similar to choice of law
clauses in modern contracts nominating an applicable legal system. A party
could bring an action from secular jurisdictions to the ecclesiastical court, on
˜default of secular justice™. Modern rival national, arbitral and EU jurisdictions
echo, over the centuries, the medieval con¬‚icts of jurisdictions which incited
each legal system, including the papal canon law, to improve the science behind
that legal system and the overall hierarchical harmony.
Non-territorial, universal rights, which would become human rights, have
their origin in this time. They had, as we saw, a prior institutional manifesta-
tion by virtue of the recognition of fundamental equality in All Souls™ Day. The
Papal Revolution may have been ˜the ¬rst great “human rights movement” of
the West in the name of “freedom of the church” (libertas ecclesiae)™.54 The
autonomy of the church from the claims of provincial, feudal and imperial
¬gures and institutions was established, as well as its subjection to the standards
it sought to uphold. Gratian regarded the pope™s freedom from judgement as
being dependent on the pope™s faithfulness, and Huguccio wrote that the pope
was not immune from trial and judgement for crimes giving scandal to the
church.55 Much canon law was framed in terms of rights.56
Clergymen became involved in secular politics and used their training in
Roman law to assist administration,57 in what was a remarkable growth in the
number of professional jurists in only one hundred years.58 This was crucial to
the development of a non-territorial Western legal science, propounded by a
profession, if not a priesthood, of lawyers with an international presence.59
[B]etween 1070 and 1170, the whole of educated Europe formed a single and
undi¬erentiated cultural unit. In the lands between Edinburgh and Palermo,


52
Berman, Law and Revolution, pp. 222“3.
53
Ibid., p. 223. See too Charles J. Reid Jr and John Witte Jr, ˜In the Steps of Gratian: Writing the
History of Canon Law in the 1990s™ (1999) 48 Emory Law Journal 647“88, 650“1.
54
John Witte Jr, ˜Law, Religion, and Human Rights™ (1996) 28 Columbia Human Rights Review
1“31, 9. Human rights have been philosophically traced to ancient Rome, in particular to the
concept of humanitas: see Richard Bauman, Human Rights in Ancient Rome (London:
55
Routledge, 2000). See Berman, Law and Revolution, p. 214.
56
See Charles J. Reid Jr, ˜The Medieval Origins of the Western Natural Rights Tradition: The
Achievement of Brian Tierney™ (1998) 83 Cornell Law Review 437“63.
57
See David S. Clark, ˜The Medieval Origins of Modern Legal Education: Between Church and
State™ (1987) 35 American Journal of Comparative Law 653“719.
58
See James A. Brundage, ˜The Rise of the Professional Jurist in the Thirteenth Century™ (1994)
20 Syracuse Journal of International Law & Commerce 185“90.
59
See Donald R. Kelley, The Human Measure: Social Thought in the Western Legal Tradition
(Cambridge, MA: Harvard University Press, 1990), pp. 130“1. According to Baldus, ˜Professors
of Law are called priests™, ˜they discharge the o¬ce of priesthood™: Ernst Kantorowicz, The
King™s Two Bodies: A Study in Medieval Political Theology (New Jersey: Princeton University
Press, 1957), p. 123.
105 Universal law and the Papal Revolution


Mainz or Lund and Toledo, a man of any city or village might go for education
to any school, and become a prelate or an o¬cial in any church, court, or uni-
versity (when these existed) from north to south, from east to west.60

˜Many of the students at Bologna came from Northern France, Germany,
Scandinavia, and the Western Slav countries, nations where in general secular
Roman law was not applied at all.™61 With their social and spatial mobility, the
clergy were the equivalent of the modern managerial class.62 The church taught
that secular rulers were bound to create peace and stability and the church was
in¬‚uential through the educated bureaucrats who assisted royal administration.
By the thirteenth century, in almost every European government (including
the papacy), courts, together with permanent ¬nancial institutions, were com-
plemented by the chancery “ an executive body co-ordinating special duties,
issuing orders to revenue collectors and judges, and dealing directly with
prelates and barons administering internal order and security against external
threats.63 Pope Boniface VIII™s 1302 bull, Unam Sanctam Ecclesiam, resorted to
the Old Testament book of Jeremiah: ˜I have set thee over the nations and over
the kingdoms.™ Between the supranational papacy and the growing impotence
of the Holy Roman Empire, ˜the great monarchies™ grew, from which would
eventuate the states.64


5.3.2 Competing jurisdictions
In the gaps between the constitutional powers of the emperor, the pope, kings,
and princes, there were other legal systems throughout Western Europe. Feudal
law, manorial law, mercatorial law and urban law all comprised viable legal
systems which existed alongside, although increasingly subordinate to, the royal
law and the canon law. Problems of jurisdiction and an attendant emerging dis-
course about priority were endemic. Appeal mechanisms existed and as a matter
of feudal law, ˜reciprocity of rights between lords and vassals™ (the principle of
equal enforcement) demonstrates foundation hallmarks of the rule of law.
Peasants might ¬‚ee the manorial law of their lords and seek protection in a city
under cover of the urban law, which occurred with the rise of commerce in the
cities and the growth of the bourgeoisie at that time. So too might vassals seek
to escape from the feudal law under which military service or taxes in lieu were
owed to the liege lord. Although all of these systems were systems in the scien-
ti¬c sense, there were disparities in the quality of their implementation in terms
of the professionalism and consistency of the court of hearing, the inferiority of
feudal law as opposed to canon law being a case in point.65

60
David Knowles, The Evolution of Medieval Thought (London: Longman, 2nd edn 1988), p. 73.
61
Wieacker, History of Private Law, p. 54; and see too p. 85 for the di¬usion of learned law in
62
Germany. Jörg Friedrichs, ˜New Medievalism™, 490.
63 64
See Strayer, Medieval Origins, pp. 32“3. See van Creveld, Rise and Decline, p. 61.
65
Berman, Law and Revolution, pp. 308“15, and generally on medieval legal pluralism. See too
Reynolds, Kingdoms and Communities; Harding, Medieval Law, pp. 61“8.
106 A Holy Roman Empire


Philosophically, it is arguable that increased choice means increased
freedom. Individuals with access to, or in possession of, legal knowledge had
choices to make about which system of justice would suit their purposes. When
people choose what might appear at an early time to be an unconventional
jurisdiction, massive social transformations can be encouraged and eventu-
ally re¬‚ected when that jurisdiction later becomes conventional. Inevitably,
systems were forced to confront their outdated customs (for example, in¬‚exi-
ble status relationships on the manor) which were not compatible with new
ideas of economy, morality, politics and rationality which could be better
pursued in alternative jurisdictions. Still, the European legal order managed to
retain cultural, interior references for allegiance, despite the agglomeration of
external political references on the Space Axis. In addition to the interior, reli-
gious aspect of law based upon scriptures, a tradition of group adjudication
prevailed, and in England the feudal right of a person to be tried by jury was
increasingly recorded in the twelfth century.66 This helped to popularise the

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