. 5
( 14)


king™s justice, retaining the moral input of the people: the jury typically com-
prised neighbours who could pronounce on property ownership (asking the
question ˜who was last in peaceful possession?™); and almost the entire free
population of the country was involved in the work of the law courts as either
litigants or jurors.67
The martyrdom of Thomas Becket at the hands of Henry II in 1170,68 the
martyrdom of Sir Thomas More at the hands of Henry VIII in 1535,69 and the
Protestant reformations in Germany and England70 are relatively popular his-
torical events. They demonstrate the unsettled nature of the competing juris-
dictions between the supranational church and the emerging state of England
and the German principalities. Notably, this was a constitutional tension
spanning some four hundred years of a superstructure relatively stable in its
movements, perhaps analogous to, although much more dramatic than,
modern contests between states in Western federal systems and their central
governments. At the end of this time, in the sixteenth-century reformations,
the constitutional cable snapped, illustrating, as will be seen in more detail
later in chapter 7, the entwined moral and political complexity of medieval

5.4 Legal education and practice in a universe of meaning
How is it that universalist legal norms could be propagated and exist relatively
harmoniously amidst such diversity? To answer this, it is necessary to consider

See R. C. van Caenegem, The Birth of the English Common Law (Cambridge: Cambridge
University Press, 1973), ch. 3 (and appearances elsewhere in Europe, pp. 72“9).
Strayer, Medieval Origins, pp. 40“1.
See James J. Spigelman, Becket and Henry: The Becket Lectures (Sydney: St Thomas More
Society, 2004); Berman, Law and Revolution, ch. 7.
69 70
See ch. 7, section 7.5, p. 159 below. See ch. 7 generally, below.
107 Universal law and the Papal Revolution

the construction of the mature medieval world view. The establishment of any-
thing social requires education in its ways.
To give an educational curriculum a place in the Model of the universe may at
¬rst seem an absurdity; and it would be an absurdity if the medievals had felt
about it as we feel about the ˜subjects™ in a syllabus today. But the syllabus was
regarded as immutable; the number seven is numinous; the Liberal Arts, by long
prescription, had achieved a status not unlike that of nature herself.71

C. S. Lewis is describing a universe. It is the normative universe of medieval
education and the seven liberal arts: Greek-derived grammar, dialectic, rhetoric
(the Trivium); and arithmetic, music, geometry and astronomy (the
Quadrivium). The devices for exposition and conclusion from the Trivium were
applied at law schools such as Bologna.72 A universe is a collectivity of worlds
in which everything is connected “ there is a purpose or explanation for every-
thing. This is not to describe an absolute constitution, but an absolute com-
mitment to a process of living in the world, with a discoverable purpose.
Historically, in the West, this purpose or explanation has been a Creator God
with a plan for the world. The subset of disciplinary worlds or spheres of
endeavour exist for, and give meaning to, the created universe in which the indi-
vidual participates. In medieval times, these worlds of activity did not function
solely for themselves. They interrelated harmoniously as part of a grand
purpose which located the worlds and gave them meaning in the universe.
The high middle ages witnessed the origin of the university; and it is of little
surprise to learn that education belonged to the spiritual73 rather than the
secular arm of government, given the church™s preoccupation with ultimate
reality and meaning. The liberal arts were a way of studying the universe: that
is, the manner by which all the worlds ¬tted together and could be understood.
The liberal arts prepared scholars for their approach to ˜higher™ professional fac-
ulties of theology, canon law and medicine. Theology, philosophy, the sciences
and the arts were part of the hierarchical ordering for knowing God.74 All sci-
ences known to the pagan world contributed to understanding the Bible in the
Christian curriculum, following Christ™s exhortation in Matthew 10: 16: ˜Be ye
wise as serpents.™75 Mysteries of the faith were subjected to reason.76 Canon law,
whilst dealing ˜with contingencies and practical necessities rather than timeless

C. S. Lewis, The Discarded Image: An Introduction to Medieval and Renaissance Literature
(Cambridge: Cambridge University Press, 1964 reprinted 1994), pp. 185“6.
Wieacker, History of Private Law, p. 33.
See Jacques Le Go¬, Intellectuals in the Middle Ages, trans. Teresa Lavender Fagan (Cambridge,
MA: Blackwell, 1993), pp. 79“82.
See G. R. Evans, Philosophy and Theology in the Middle Ages (London: Routlege, 1993), p. 9; Le
Go¬, Birth of Europe, p. 123; Barber, Two Cities, p. 442.
R. W. Southern, The Making of the Middle Ages (New Haven: Yale University Press, 1953),
p. 171.
Joseph R. Strayer, Western Europe in the Middle Ages (New York: Appleton-Century-Crofts Inc.,
1955), pp. 129“30.
108 A Holy Roman Empire

truths, must not blind us to the grandeur of its purpose, which is the ordering
of those contingencies in a coherent whole™.77 According to Accursius, it was
unnecessary for a lawyer to study theology because ˜all that is found in the body
of Law™.78
Rhetoric was de¬ned in the sixth century as ˜expertness in discourse in civil
questions™.79 It later encompassed the study of rudimentary Roman law and
practical law training (ars notaria “ the art of writing legal, business, church and
government documents); and (dialectical) logic developed skills of argumenta-
tion for law.80 These were devices which attempted to condense into law a way
of life from an atmosphere humid with spiritual, natural and customary
meaning. This ˜law™ was not something narrowly doctrinal in the sense of
the law associated with lawyers today. Law was then closer to what we now call
Through this process, canon law (ecclesiastical norms), and indeed the
concept of law (as the hierarchy of norms in the universe), took on a more
objective, less necessarily spiritual quality, as the canon law became di¬er-
entiated from more socially abstract theology82 and its disputable stories about
the beginning and ending of humanity. This was a meaningful universe where
di¬erent worlds ¬tted together. There was a coherence, through the synthetical
concordance of seemingly discordant disciplinary canons in a universe which
sought, after the Lord™s Prayer, the establishment of the ˜Kingdom come . . . on
earth as it is in heaven™.83
Western legal science ¬‚ourished after the rediscovery of Justinian™s texts in
about 1080, with the study of law in European universities such as that at
Bologna shortly afterwards.84 An Islamic contribution must be acknowledged.
The intellectual environment had been inspired by Arabian contributions to
mathematics (encompassing the importation of Hindu numerals from India),
medicine, astronomy, botany, agronomy, alchemy and philosophy.85 There may
have been some Islamic doctrinal legal connections, although to suggest the
new Western laws were a ˜product™ of Islam is implausible because of the loca-
tion and references of the discourse.86 Highly civilised Arab communities
present in the Mediterranean basin may have acted as some impetus for

Robinson, European Legal History, p. 73, citing Kuttner, ˜Harmony from Dissonance™.
78 79
Kantorowicz, King™s Two Bodies, p. 123. Kelley, Human Measure, p. 109.
Clark, ˜Medieval Origins™, 671, 705.
Walter Ullmann, cited in Kelley, Human Measure, p. 152.
Clark, ˜Medieval Origins™, 678.
See Berman, Law and Revolution, pp. 25“8; Tellenbach, Church, esp. pp. 47“56, 154; and
pp. 100“1 above.
See generally Manlio Bellomo, The Common Legal Past of Europe 1000“1800 trans. Lydia
G. Cochrane (Washington, DC: Catholic University of America Press, 1995) chs. 3, 5“6.
Le Go¬, Birth of Europe, p. 18.
Cf. Joh A. Makdisi, ˜The Islamic Origins of the Common Law™ (1999) 77 North Carolina Law
Review 1635“1739; see too P. G. Monateri, ˜Black Gaius: A Quest for the Multicultural Origins
of the “Western Legal Tradition” ™ (2000) 51 Hastings Law Journal 479“555.
109 Universal law and the Papal Revolution

the profound Western developments in law of the late eleventh century.87
Nonetheless, Western legal science as it emerged was to describe an evolution in
the systematisation of legal doctrines centred in Western Europe.
This new legal science saw the ¬ssion of di¬erences between the Hebrew
culture which would not tolerate Greek philosophy or Roman law; the Greek
culture which would not tolerate Roman law or Hebrew theology; and the
Roman culture which would not tolerate Hebrew theology and resisted large
parts of Greek philosophy.88 Although Greek dialectics had been applied to
Roman law in the republican period, resulting in a form of reasoning which
could draw a conclusion from a problem or question as opposed to the apo-
dictic conclusion drawn from true or false statements, Cicero was to argue
unsuccessfully for a more complex systematisation of the law, ˜with clear
de¬nitions and abstract legal rules™. The Romans had been suspicious of the
application of more sophisticated Greek philosophy to their own practical
mastery of adjudication.89
The scholastic jurists of the eleventh and twelfth centuries in Western Europe
were not perturbed by perceived inconsistency between Roman pragmatism,
Judeo-Christian theology and Greek conceptualism. Whereas the systematisa-
tion of the Roman law had been e¬ected by drawing rules from common ele-
ments in particular species of cases, the new jurists sought to draw principles
from the rules and these principles themselves into an entire system which
could demonstrate what was true and just, thereby elevating the Roman prag-
matic genius to the lofty heights of Greek philosophy.
Opening up the new contexts of theological texts using Greek metaphysics,
interior cultural and moral norms could be rationalised if not transformed into
purportedly universal laws. St Thomas Aquinas (1224/5“74), the father of
scholasticism, turned Aristotle™s notion of natural law (Ius Naturale) into a
di¬erent type of natural law (Lex Naturalis) which was part of the Eternal Law
of God, the creator of nature.90 This Islamic derivative, Averroist doctrine sepa-
rated the nature of man and his reason from the divine order, although this
nature participated in the divine order. Thus a man could be a citizen in a state
separate from ecclesiastical authority. The separation of what is now called pos-
itive law (predominantly custom but also enactment, for Aquinas) from the
divine standard could then allow human law to develop from references outside
theology and scripture. Law in general could develop according to its own
imperatives and subject to human responsibility, although by reference to a
transcendent framework and order (divine law as it had been revealed) which
could serve as a foil. Aquinas™ natural law of (what are today called) nations (ius

See H. Patrick Glenn, Legal Traditions of the World: Sustainable Diversity in Law (Oxford:
Oxford University Press, 2nd edn 2004), p. 133, and cf. pp. 225“7 and his On Common Laws
(Oxford: Oxford University Press, 2005), p. 125.
88 89
Berman, Law and Revolution, pp. 132“43. Ibid., pp. 134“9.
Aquinas, Summa Theologica, I“II, q. 90“114. See generally John Finnis, Aquinas: Moral,
Political, and Legal Theory (Oxford: Oxford University Press, 1998).
110 A Holy Roman Empire

gentium) was separated from positive, humanly authorised law: the positive law
for nations was to be deduced from the natural principles.91 In Aquinas, there
prevailed the exercise of exterior justi¬cation in the form of textual discourse,
grounded in an accessible, interior morality perceivable from those texts “
chie¬‚y the Bible “ which was at once the rational word of God and therefore also
culturally compelling to a Christian society. Morally, law sought to induce the
pursuit of virtue by individuals; it did not only exist politically to order the
common good of society.92 That society was at a juncture in the movement from
local, customary, feudal ways of understanding order, to the more rational
dominion of states with more universal claims on the peoples within them.
The Gregorian, Papal Revolution view of time, with its view of the necessary
evil of the secular world on its way to the conversion of the faithful to the City
of God on earth, blossomed with the Aristotelian belief in the eternity of the
world. The doctrine of the eternity of the world ˜captivated Western minds after
the middle of the thirteenth century™. The world would get older. This view of
time has been implicitly described by Ernst Kantorowicz as a ˜decisive histori-
cal factor™ in ˜the genesis of the modern state and of modern economy™.93
Humanity was part of time, and this time would continue inde¬nitely until the
last days, as part of the tempus. God belonged to the aeternitas. God was before
time, and would be after time; though not part of time. Law had a cosmic rele-
vance to this. ˜[T]he personi¬ed collectives of the jurists, which were juristically
immortal creatures™ were beyond the transitory tempus of man. That is, the
lawyers, taken as a whole, corporately, had a transcendent signi¬cance. This
immortal notion of the jurists “ the expositors of Western legal science “ existed
in the aevum of the angels: angels were created by God, therefore they could not
belong to the aeternitas; although they would outlast the Last Day unlike
humans who were limited by the tempus.94 Thus the political and legal world
took on a ˜sempiternal™ character (that is, created at a beginning point in time
but unending), analogous to ˜the “spiritual bodies” of the celestial beings™.
The de-individualised ¬ctitious persons of the lawyers, therefore, necessarily
resembled the angels, and the jurists themselves recognised that there was some
similarity between their abstractions and the angelic beings. In this respect, then,
it may be said that the political and legal world of thought of the later Middle
Ages began to be populated by immaterial angelic bodies, large and small: they
were invisible, ageless, sempiternal, immortal and sometimes even ubiquitous;
and they were endowed with a corpus intellectuale or mysticum which could stand
any comparison with the ˜spiritual bodies™ of the celestial beings.95

See Alfred Verdross and Heribert Franz Koeck, ˜Natural Law: The Tradition of Universal
Reason and Authority™ in R. St J. Macdonald and Douglas M. Johnston (eds.), The Structure
and Process of International Law: Essays in Legal Philosophy Doctrine and Theory (The Hague:
Martinus Nijho¬ Publishers, 1983), pp. 19“20.
J. M. Kelly, A Short History of Western Legal Theory (Oxford: Oxford University Press, 1992),
p. 136. Kantorowicz, King™s Two Bodies, pp. 273“4.
94 95
Ibid., pp. 280“2. Ibid., p. 283.
111 Universal law and the Papal Revolution

That there could be such a cosmological signi¬cance attached to the collective
enterprise of lawyers today could barely be taken seriously. More gravity might
be accorded to a not inconceivable but related proposition. Lawyers today could
become known for their sensitivity to their crucial technical role in the media-
tion of authority and the achievement of the moral and political purposes of
authoritative norms with which they engage, intellectually, for a historical
purpose. That this is required after the World Revolution should be taken seri-
ously. Some preliminary propositions to this end are contained by way of con-
clusion to this book in chapter 13.

5.5 Threshold characteristics of the Western legal tradition
The indicia of the Western legal tradition, as identi¬ed by Harold Berman,96 were
established in the Western European legal order following the Papal Revolution.
Islamic inputs into the scienti¬c milieu must be acknowledged, although the
legal science and its practical application were uniquely Western.97 Law could be
distinguished from other social institutions; it was largely organised and taught
by specialists or professionals; and the institutions of law could be criticised by
reference to the doctrines they produced (a rule of law principle). These quali-
ties were possessed also by the ancient Roman law of Justinian. In addition,
Western legal science from the twelfth century featured a sense of wholeness in
the system which permitted the scholastic reconciliation of contradictions whilst
not compromising the integrity of the system; law was believed to have the
resources to develop organically into the future; law developed coherently by its
internal logic to reinterpret the past ˜to meet present and future needs™; systems
of law were separate from political authorities; this supremacy of law was
because of its embrace of the legal pluralism of diverse legal systems; and the
ideals and realities of law were in a constant tension by which legal systems could
periodically be overthrown by revolution, without destroying, in the longer
term, the legal tradition which underlay these characteristics.98
So the Western legal tradition was established in the twelfth century, from the
Papal Revolution.99 Complexity from interconnections between many sub-
societies could be contained in a relatively stable social order. This is the main
legal challenge of globalisation which confronts third-millennium humanity.

96 97
See ch. 1, section 1.5, pp. 16“18 above. See pp. 108“9 above.
See Berman, Law and Revolution, pp. 7“10.
On the signi¬cance of this period to legal history, with various interpretations, see Brian
Tierney, The Crisis of Church and State 1050“1300 (NJ: Englewood Cli¬s, 1964) part III and his
Foundations of the Conciliar Theory: The Contribution of the Medieval Canonists From Gratian
to the Great Schism (Cambridge: The University Press, 1955 reprinted 1968). See too R. H.
Helmholz, ˜Harold Berman™s Accomplishment as a Legal Historian™ (1993) 42 Emory Law
Review 475“96; Charles J. Reid Jr and John Witte Jr, ˜Steps of Gratian™; Patrick Wormald, The
Making of English Law: King Alfred to the Twelfth Century (Oxford: Blackwell, 1999), p. 471;
Maurizio Lupoi, The Origins of the European Legal Order, trans. Adrian Belton (Cambridge:
Cambridge University Press, 2000), pp. 3“4.
112 A Holy Roman Empire

A general, globalist jurisprudence may today take heart that disparate interior,
moral, cultural ideas and practices can be synthesised into an exterior, univer-
salist political discourse on the Space Axis which may maintain stability whilst
accommodating change within manageable, consistent parameters of nor-
mativity. Of course this exercise will not be without its challenges and con-
troversies, especially amongst cultural sub-groups with varying interpretive
commitments. Cultural and political openness, and textual rigour tempered
with imagination, will be essential, some preliminary suggestions towards
which are o¬ered in chapter 10.
Attention must now turn to the decline of universality, including the loss of
what might be termed the ˜universe-concept™ of ultimate reality and meaning
through which medieval lawyers were so di¬erently understood in comparison
to their disciplinary descendants today. After 1300, things started to decline
politically for the papacy. To the constitutional aspects of the decline of our
rhetorical holy Roman empire and the rise of the concept of the state, attention
will now turn. This is relevant to the perceived naturalness of the doctrine of
state sovereignty, regarded by many to be threatened by globalisation.
Part 3
State Formation and Reformation

Territorial law and the rise of the state

About twenty generations or ten grandparents ago, the notion of the state as we
know it was dawning. Before then, as we have seen, there was certainly law.
University-trained lawyers, law books, rule of law, and courts with rules and
procedures which (like today) left laypersons cold, were permeating Western
Europe. They lubricated diverse social systems and their interconnections.
Jurisprudence, of its nature, was general. Furthermore, jurisprudence was his-
torical, in the sense that it was an evolving discourse which made reference to
its past in a vision for the future. It was also normative, authorised by and
serving an articulated ultimate reality and meaning, being God™s creation, and
the human™s place in the world.
The supranational law of the papacy was to grow less universally e¬ective, in
tune with the emerging fortunes of the state and the decline in the political power
of the papacy. A secular, selective universality would be advocated by theorists for
an emerging international legal order of particularistic, self-determining states.
Various theorists based this order in human consent and political will (posi-
tivism) and/or rational idealism (naturalism), without the former, universalistic,
European political and moral discourse of allegiance. (Western legal science
remained, nonetheless, conceptually universalistic in terms of the mechanics and
institutions of Western legal systems.) Signi¬ed by the end of the Thirty Years War
and the Peace of Westphalia in 1648, the continuing decline of the supranational
papal authority made these new secular theories increasingly relevant.
This chapter will consider these universalistic and particularistic aspects of
the Western legal tradition up until the early seventeenth century. (Investigation
of the crucial transformation in the pattern of law and authority in the
Protestant Reformations will be deferred until chapter 7.) Diverse state forms,
exempli¬ed by the di¬erent English and German legal systems, were permeated
by a common, universalistic legal science, continuing the globalisation theme
of universality versus particularity and diversity.

6.1 The birth of the state
The word ˜state™ assumed its current meaning after the establishment of the
Western legal tradition. Earlier, medieval charters had referred to ˜the welfare of
116 State Formation and Reformation

the kingdom™ (status regni) “ ˜state™ was used as one would use the word ˜situ-
ation™. Justinian™s Corpus had addressed the ˜state™ or ˜situation™ of the Roman
republic (status rei Romanae). In the early thirteenth century, Accursius pio-
neered the modern usage, by writing of ˜the state™, of itself, as in ˜to preserve the
state so that it shall not perish™ (ad statum conservandum ne pereat).1 By 1300,
Accursius™ idea of the state was gaining acceptance and overtones of patriotism
were emerging.2 Not until the ¬fteenth century did states develop the ¬ction of
corporate legal personality separate from the civil society.3
The signi¬cance of the medieval town to constitutional thought and law gen-
eration is often overlooked. In the eleventh and twelfth centuries, towns were a
major innovation in sovereignty, unevenly embedding frames of economic,
political and cultural interconnection in the emergence of sovereign polities.4
As such, they are not totally devoid of analogy to the ˜urban geography™ of cities
today being physical sites ˜re-territorializing™ industries and markets and re-
negotiating authority and allegiances.5 The cities which emerged were the ¬rst
secular polities, in the sense of being controlled by laity. Nonetheless, much of
their ˜spirit and character™ came from the church, displayed through ˜religious
values and rituals, including religious oaths™.6 In addition to religious com-
monality, there was also a strong sense of social solidarity, brotherhood, friend-
ship and mutual aid in corporate guild and craft groups to protect economic
livelihood,7 although freedom and equality did not reign supreme.8
Parliaments have signi¬cant origins around this time in the representative
assembly, re¬‚ecting the ˜general climate of opinion™. Writings emerged on
feudal, customary and of course revived Roman law. This juristic discourse
advanced the rule of law ideal that ˜important decisions should be made pub-
licly, that customs should not be changed without general agreement, that
consent was necessary when the superior needed extraordinary additions to his

See R. C. van Caenegem, An Historical Introduction to Western Constitutional Law
(Cambridge: Cambridge University Press, 1995), pp. 5“6. Aquinas used the word ˜state™
similarly in the sense of the ˜state of the people of the Jews™: Alan Harding, Medieval Law and
the Foundations of the State (Oxford: Oxford University Press, 2002).
See Joseph R. Strayer, On the Medieval Origins of the Modern State (Princeton: Princeton
University Press, 1970), p. 57; see too Ernst Kantorowicz, The King™s Two Bodies: A Study in
Medieval Political Theology (New Jersey: Princeton University Press, 1957), pp. 232“62.
Philip Bobbitt, The Shield of Achilles: War, Peace and the Course of History (London: Penguin,
2003), p. 214. On the jurists™ ¬ctions of the king™s two bodies “ his o¬ce and his person “ and
the perpetuity of ˜the People™ as a body politic, see Kantorowicz, King™s Two Bodies.
On the varying relationships of towns and cities to the emerging states, see Hendrik Spruyt,
The Sovereign State and Competitors: An Analysis of Systems Change (Princeton: Princeton
University Press, 1994) and p. 126 below.
See Saskia Sassen (ed.), Global Networks, Linked Cities (New York: Routledge, 2002).
Harold J. Berman, Law and Revolution: The Formation of the Western Legal Tradition
(Cambridge, MA: Harvard University Press, 1983), p. 362.
Antony Black, Guilds and Civil Society in European Political Thought from the Twelfth Century
to the Present (London: Methuen, 1984), pp. 12“17.
See Malcolm Barber, The Two Cities: Medieval Europe 1050“1320 (London: Routledge, 1992),
p. 52.
117 Territorial law and the rise of the state

income, that “what touches all should be approved by all” ™.9 The latter, funda-
mental proposition grew from the Romano-canonical maxim, Quod omnes
tangit ab omnibus approbetur.10 Parliaments adapted to these historical legal
visions over time, although not always without challenge.
The sovereign state emerged from a variety of prototypical forms with varying
diversities of currency, weights, measures and military and administrative organ-
isation. In di¬erent ways, the prototypical states settled issues of independence
from outside powers and asserted ¬nal authority over populations within geo-
graphical boundaries or spheres of containable disruption. Evidently these pro-
totypical states were the most expedient political form for coping with internal
stresses and external threats, in e¬ect ˜de-parcellising™ sovereignty, over centuries,
into larger, self-contained and homogeneous spheres of containable disruption.
England and France were to emerge as the two most centralised and sovereign of
states, after ¬ghting strongly for fringe territories along frontiers; whilst German
principalities and Italian cities showed lesser signs of modern sovereignty.11

6.2 Legal diversity and universality in the emerging European states
In today™s parlance, the later medieval lawyers sought to marry the global with
the local. The ˜Glossators™ were the post Papal Revolution jurists who revived
Roman law and assimilated it into the medieval legal systems. The glosses which
they produced were in the form of explanatory comments concerning Roman
law words, phrases and texts, including accepted usages and interpretations,
and answers to questions not settled by the texts.12 The later ˜Commentators™ of
the fourteenth century onwards brought about the reception of Roman law into
Western Europe particularly with respect to the plurality of jurisdictions and
legal systems, transforming Justinian™s Corpus into ˜a common law for the whole
of Europe™ “ ˜ius commune™.13 The ius commune was the name given to the legal
science14 “ not necessarily doctrinal law “ which was common to Germany,
France, Italy, Scotland and even England around the time of Bracton in the thir-
teenth century. R. H. Helmholz propounds the ius commune as an amalgam of

Strayer, Medieval Origins, pp. 65“6.
See Gaines Post, Studies in Medieval Legal Thought: Public Law and the State 1100“1322
(Princeton: Princeton University Press, 1964), ch. 4.
Strayer, Medieval Origins, pp. 58“60.
See generally O. F. Robinson, T. D. Fergus, W. M. Gordon, European Legal History (London:
Butterworths, 1994), ch. 3.
Franz Wieacker, A History of Private Law in Europe, with Particular Reference to Germany,
trans. Tony Weir (Oxford: Oxford University Press, 1995), pp. 56“7.
˜Legal science™ refers to ˜every vocational occupation with the law™ according to Fritz Schulz, A
History of Roman Legal Science (London: Oxford University Press, 1967) and represents ˜an
institutionalization of the process of resolving con¬‚icts in authoritative texts™ according to
Berman, Law and Revolution, p. 160. See too Harold J. Berman and Charles J. Reid Jr, ˜Roman
Law in Europe and the Jus Commune: A Historical Overview with Emphasis on the New
Legal Science at the End of the Sixteenth Century™ (1994) 20 Syracuse Journal of International
Law & Commerce 1“31.
118 State Formation and Reformation

Roman law and canon law with feudal law occupying a secondary role.15 James
Brundage observes ¬ve meanings from the historical writings: natural law, ius
gentium, Justinian™s Corpus, the canons of the Western church and, from the
thirteenth century, the Romano-canonical law of the universities.16
The opposite of ius commune or common law was ius proprium or particular
law “ the norms of local institutions such as the kingdom, principality, free city,
feudality, corporation or confraternity.17 Uniquely balanced between historical
custom (particularity) and intellectual reason (universality grounded in Roman
law), the ius commune was something of a universalist way of dealing with diver-
sity. As Manlio Bellomo has written:
Plurality was thus part of the ˜system™, and the system itself was inconceivable and
would never have existed without the innumerable iura propria linked to the
unity of the ius commune. The greater imperfection of men™s laws (the ius pro-
prium) was related to the lesser imperfection of the laws of the rulers of the earth
(the ius commune), but both laws, in varying measure, contained and divulged
only a tenuous glimmer of the Justice that was absolute, divine, hence eternal.18

Patrick Glenn has recently captured the complexity of this ˜common law™
notion. There was not just one ius commune system, but ˜multiple, interactive
common laws; each radiating out from major centers™, being ˜law common in
relation to law that was particular™.19 The ius commune was part of a ˜relational
common law™, coexisting with, for example, the English common law, the
German gemeine Recht, the French droit commun coutumier and Italianate
regional common laws.20 The value to a general, globalist jurisprudence is
apparent, given the interaction exposed in medieval jurisprudence between
universalistic and diverse human tendencies in the di¬usion across Europe of
Romanist law and Western legal science.21 A relatively common legal science
arose organically from diverse political organisations, prompted by the univer-
salism of the church and its canon law model. Legal pluralism ¬‚ourished.
The emerging state systems of Germany and England prior to the
Reformations are brie¬‚y investigated to demonstrate this viable model for legal
pluralism and also the diverse paths but common origin of law in the interior,
personal dimension of the Space“Time Matrix “ not the exterior, bureaucratic,

R. H. Helmholz, The ius commune in England: Four Studies (Oxford: Oxford University Press,
2001), pp. 3, 10.
James A. Brundage, The Profession and Practice of Medieval Canon Law (Aldershot: Ashgate
Variorum, 2004), VIII, pp. 238“9.
See Manlio Bellomo, The Common Legal Past of Europe 1000“1800, trans. Lydia G. Cochrane
(Washington, DC: Catholic University of America Press, 1995), p. xi, ch. 4.
Bellomo, Common Legal Past, p. xii.
H. Patrick Glenn, On Common Laws (Oxford: Oxford University Press, 2005), p. 19.
Glenn, Common Laws, pp. 42“3.
On the relevance of di¬usion to globalisation, see William Twining, ˜Di¬usion of Law: A
Global Perspective™ (2005) 49 Journal of Legal Pluralism and Uno¬cial Law 1“45; and more
relevantly for present purposes, William Twining, ˜Social Science and Di¬usion of Law™ (2005)
32 Journal of Law and Society 203“40, 208“13.
119 Territorial law and the rise of the state

political dimension. Space constraints prevent investigation of, for example,
France (centralised early, like England) and Italy (not united until the nine-
teenth century, like Germany). Neither of these two exclusions deviates from the
axiom that their later states originated, in terms of the Space“Time Matrix, in
the interior, cultural dimension of custom.22 At once less bureaucratic and more
interior in origin on the Space Axis, exterior legitimacy also attached to the laws
of these emerging states through a Western legal science.

6.2.1 Germany
Germany has been a fragmented, decentralised state, perhaps more akin to a
federation of political communities, for most of its history. Centralisation was
not to succeed, even by the time of the demise of the Holy Roman Empire in
1806 (the real and spiritual power of which had been declining since the latter
thirteenth century).23 Unlike the alliance which the French kings had forged
with the towns, the German kings had allied themselves with the lords, at the
expense of the towns. German kings, in their e¬orts to achieve the aspirations
of the Holy Roman Empire, had also sought control over Italy. This also
required the support of the dukes and ecclesiastical lords to grant them control
over the towns, at the expense of obtaining any real authority over the lords.24
In e¬ect, the German kings alienated the towns and were indebted to the lords
in a bargain honoured by none of the parties.
In opposition to the feudal governmental structures and the imperial pre-
tensions of the papacy and the Holy Roman Empire, the German free towns
formed the city-league. From this grew a federation of towns, the Hanseatic
League, in the thirteenth century, peaking in the fourteenth and ¬fteenth cen-
turies. As a major economically unifying force in Europe embodying emerging
ideas for good government, the Hansa was not merely ˜an economic associa-
tion™; ˜like states it waged wars, and on occasion it could make or break kings™;
and it could ˜send emissaries, sign treaties, collect revenue, enforce Hansetag
decisions . . . raise an army, conduct foreign policy, decree laws, engage in social
regulation, and collect revenue™.25
Hendrick Spruyt maintains that the Hanseatic League provides evidence for
˜a viable way of organizing economic and political activity in the absence of a
central authority™,26 in contrast to the state model. Nonetheless, if sovereignty
is considered in the modern sense to encompass a ¬nal decision-making struc-
ture with a monopoly on violence and justice within broad territorial bound-
aries, city-leagues failed this measure. They were small islands of containable
disruption in the tempestuous seas of other rulers. Furthermore, the Hansa

See generally Spruyt, Sovereign State; and Glenn, Common Laws.
Martin van Creveld, The Rise and Decline of the State (Cambridge: Cambridge University
Press, 1999), p. 100. Spruyt, Sovereign State, p. 109.
Ibid., pp. 123“6. See too Wilhelm G. Grewe, The Epochs of International Law, trans. Michael
Byers (Berlin: Walter de Gruyter, 2000), p. 58. Spruyt, Sovereign State, pp. 126“8.
120 State Formation and Reformation

could not manage to provide standard weights, measures and coinage, nor to
enforce centralised justice or revenue raising. The Hanseatic League also faced
di¬culties obtaining recognition in international politics, for example, at the
Peace of Westphalia (to which we shall come later in this chapter), because the
League could not bind all members to the agreements.27
Despite the loose empire of Germany “ some 350 principalities “ there was a
strong German ˜common law™. This comprised the canon law common to the
whole of Western Europe and its universities and bishops™ courts, which
included Roman law and its revival scholarship, as well as German customs
worked into this system. The proportion of Roman law was low relative to
custom, because of the di¬usion of customary laws. Particular custom or ius
proprium was, however, accommodated by the universalistic method. Courts of
leading cities provided guidance to the other cities, fostering a common
approach. The very large territories (L¤nder), in developing their legal institu-
tions, borrowed extensively from one another.28 Contrary to the impression
perhaps created by its political fragmentation, Germany featured a legal sophis-
tication and coherence. The customary law, which operated at the secular level,
was administered by a lay (as opposed to university-trained legal professional)
sta¬, Schö¬en, which systematised the custom in ˜mirrors™ re¬‚ecting the territo-
rial customs of the people. The authority of the Schö¬en was grounded not in
university learning but ˜on practical experience and familiarity with life, and
perhaps even more on their social position™.29 The Schö¬en had to rely upon the
learned clerk of the city to cope with the submissions of the legal professionals
who practised the ˜learned law™ of the ius commune. This was a centralising,
imperial phenomenon, which had begun earlier in Bavaria. The Schö¬en of the
larger cities had sometimes been merchants who were aware of other regimes,
and they were often the subject of appeal for law (responsa) by ˜daughter™ towns.
˜[O]ne of the greatest of the tribal laws™ or ˜mirrors™, premissed in the authority
of Christian political theology, was the Sachsenspiegel (Mirror of the Saxons).30
This was itself a transportable, common law.31 There was, then, a strong histor-
ical, customary basis for the German secular positive law, attracting allegiance
by virtue of its location towards the interior orientation of the Space Axis, whilst
featuring an exterior rationality.
To cope with the increasing diversity of interconnections, in the absence of a
legal profession as such practising customary law (as was the case in England),
learned lawyers were imported from the law faculties in Italy and later their
German o¬spring. Roman law and canon law had been applied to secular

Ibid., pp. 163“70.
See Harold J. Berman, Faith and Order: The Reconciliation of Law and Religion (Atlanta:
Scholars Press, 1993), p. 92; Harding, Medieval Law, pp. 99“108.
Wieacker, Private Law, p. 82.
See Wieacker, Private Law, p. 78; see too Harold J. Berman, Law and Revolution, II: The Impact
of the Protestant Reformations on the Western Legal Tradition (Cambridge, MA: Harvard
University Press, 2003), p. 34. Glenn, Common Laws, pp. 37“9.
121 Territorial law and the rise of the state

litigation in ecclesiastical courts since the thirteenth century. In the second half
of the ¬fteenth century, the ius commune was applied regularly in the secular
courts by learned judges.32 A formal reception of Roman law occurred in
Germany and its Holy Roman Empire in 1495, amidst an established movement
for public peace, with the establishment of the Reichskammergericht as a refur-
bished imperial supreme court of justice. Together with other new courts of
justice sta¬ed by Romanist jurists, the German princes, it is widely accepted,
were attempting to create a rational government order to suppress violence.33
(This violence, we shall see in the next chapter, inspired Luther and his juristic
cofactor, Phillip Melanchthon, in their reforming e¬orts.) Written procedure
was emphasised. Although restricted primarily to imperial courts, Romano-
canonical procedure was used gradually to supersede the oral forms by 1505.
Given that the court, as a court of appeal, could not be expected to have tech-
nical knowledge of the law and customs of the many di¬erent trial jurisdictions,
Roman law was applied by default unless local law was speci¬cally pleaded.34
This re¬‚ected an older subsidiarity principle relevant especially to EU law
today:35 the most local of laws could receive the highest authority, in the absence
of reasons to the contrary.36
Contrary to the private law in England,37 the universities played an import-
ant role in the development of Romanist German jurisprudence, particularly
after the reception of Roman law. At the end of the ¬fteenth century, the opin-
ions of the law professors were obtained, by despatch of record to a university
for consideration (Aktenversendung).38 The usus modernus Pandectarum (the
modern application of the Pandects, or, literally, Justinian™s Corpus) was used by
the faculties, transcending boundaries of princes and taking authority from the
imperial source.39 This is perhaps best considered ˜an intellectualisation of
German law and lawyers™40 [original italics]. The universal tolerance of particu-
larity and diversity therefore declined with the growth of prototypical German
state institutions and the Roman law, whilst still drawing on a long Romanist
legal tradition for authority. Movement towards the exterior orientation of the
Space Axis was occurring.

6.2.2 England
In analysing the growth of the absolutist state, Perry Anderson, in passing,
described the England relevant to the present enquiry as ˜the strongest mediaeval

See Wieacker, Private Law, pp. 83“90, 113“18.
Whitman, Legacy of Roman Law, pp. 12“13.
See Robinson, European Legal History, [11.3.3]; Bellomo, Common Legal Past, pp. 217“20.
135 36
See ch. 11, section 11.2.5, p. 263 below. Glenn, Common Laws, p. 19.
As will be seen (see ch. 7, section 7.2.1, pp. 148“50), the public law tradition in England did at
times draw on Roman law for authority.
See Robinson, European Legal History, [7.4.1]“[7.4.2]; Wieacker, Private Law, pp. 136“7;
Whitman, Legacy of Roman Law, pp. 34“5. Robinson, European Legal History, [11.4.4].
Wieacker, Private Law, p. 95.
122 State Formation and Reformation

monarchy in the West™.41 Saxon kings had centralised the country e¬ciently. By
the time of Norman feudalism in the later third of the eleventh century, England
possessed an administrative centralisation which, when taken with the original
conquest and modest size of the country, generated ˜an unusually small and
regionally uni¬ed noble class, without semi-independent territorial potentates
comparable to those of the Continent™.42 Towns were part of the royal estate as a
consequence of the Norman conquest in 1066, when all land in England became
held of the crown (a ¬ction which survives to this day even in Australian land
law). Towns were never powerful enough to challenge their subordinate status;
and the clergy was not so powerful either, comparatively. It will surprise some to
learn that the English common law which arose at this time was essentially
imported by the French conquerors.43
There was initially coexistence between royal courts and manorial, feudal and
church courts. The royal courts were not, though, the ˜regular professional
justice™. Royal courts were extraordinary as there were no permanent adminis-
trative, legislative and judicial bodies operating on their own authority.44 From
an early stage, parliaments emerged as ˜collective institutions of the feudal
ruling class™, coinciding with the boundaries of the country. From the time of
Edward III (reigned 1327“77), barons and bishops in the English parliament
were represented alongside knights and towns. The courts which emerged
˜blended™ the royal jurisdiction with surviving local customary courts. Courts
˜retained vestiges of their original character as popular juridical assemblies in
which the free men of the rural community appeared before their equals™; evolv-
ing into ˜an unpaid aristocratic self-administration™ in the counties, from which
the then judicial role of the Justice of the Peace was to emerge.45 Similarly to the
German common law, the English common law had (and to a very limited
extent still has today) an inherent subsidiarity principle, deferring to more
locally established custom.46
The similarities between classical Roman and English legal science often go
unnoticed. Both Roman law and English common law developed though a case-
based discourse. In both systems, law ˜developed™ out of an assumption that the
relevant law actually existed, although not yet articulated, and that the scope
simply needed de¬nition. The development of English law, like Roman law, was
concentrated upon particular forms of action, such that legal discussion was
concerned with remedies rather than with rules. This was exempli¬ed by the
formula granted by the praetor in Rome, published in his edict; and by the writ
granted by the Chancellor in England, published in a register of writs. The clas-
sical procedure of English common law, like Roman law, divided legal actions

Perry Anderson, Lineages of the Absolutist State (London: NLB, 1974), p. 113.
Anderson, Lineages, pp. 113“14.
R. C. van Caenegem, European Law in the Past and the Future: Unity and Diversity over Two
Millennia (Cambridge: Cambridge University Press, 2002), pp. 2“3.
144 45
See Berman, Law and Revolution, p. 441. Anderson, Lineages, pp. 114“16.
See Glenn, Common Laws, pp. 25“32.
123 Territorial law and the rise of the state

into two stages: at the ¬rst stage, the legal issue was identi¬ed; and the second
stage concerned proof and the adjudication of the issue. In both systems, the
second stage was assigned to laymen: the jury in England and the iudex in Rome.
If the jury or iudex found the allegations proved, judgment would be ordered
against the defendant.47
The laymen™s decisions in fact replaced the judgment of God “ which was
supposed to have been channelled through nature, for example, by trial by
ordeal or battle. The award of money damages was the only remedy the laymen
could provide, ˜probably because of the transitory nature of their o¬ce; once
they had given their verdict, their o¬ce ceased to exist™. When remedies other
than money came to be required, the ¬rst such remedies issued were the inter-
dict by the praetor himself in ancient Roman times, and the injunction by the
Chancellor in the English system, who restricted the common law judges to
control of the writ system. This is how, in time, the systems evolved of the ius
honorarium of the Roman praetor and the equity of the English Chancellor,48
which in England was to develop in its own jurisdiction separate from the
common law until 1875.49
There is a di¬erence between a similar legal science as opposed to similarities
in legal doctrines. That is, similar systems of procedure can exist with marked
doctrinal di¬erences. There can be similarities in legal science although much
less in common, doctrinally. For example, there was no major English ˜recep-
tion™ of Roman law as there was on the Continent. That is, English law could not
be derived as a matter of principle by practitioners from Roman jurisprudence.
Yet the doctrinal similarities should not be dismissed: ˜rather than speaking of
conscious borrowings, one must speak instead of parallels, of similarities of lan-
guage, of coincidences that seem too striking to be coincidental™.50 It is perhaps
going too far to suggest that commonalities may have arisen from the time of
the withdrawal of Roman troops from England in the ¬fth century.51 The
Anglo-Saxon invaders knew nothing of Roman law or canon law, although after
they converted to Christianity in the seventh century they began to write down
their laws, probably with some trace of Roman law. King Ethelbert of Kent had
compiled or codi¬ed the laws of his Kingdom (c.600 CE) in ˜Roman fashion™.52
The Norman invasion in the mid-eleventh century had eschewed any rele-
vance of Latin charters used to record conveyances of land until that point, and
it was not until the ¬rst century after the conquest that the Leis Willelmi appeared
with ten short extracts which seemed to be borrowed from the Digest. Like the

Peter G. Stein, ˜Roman Law, Common Law, and Civil Law™ (1992) 66 Tulane Law Review
1591“1604, 1592“3. Ibid., 1593“4.
See J. H. Baker, An Introduction to English Legal History (London: Butterworths, 4th edn
2002), pp. 114“15.
Charles Donahue Jr, ˜Ius Commune, Canon Law, and Common Law in England™ (1992) 66
Tulane Law Review 1745“80, 1748.
Cf. Edward D. Re, ˜The Roman Contribution to the Common Law™ (1993) 39 Loyola Law
Review 295“311, 300.
Re, ˜Roman Contribution™, 302. Cf. Donahue, ˜Ius Commune™, 1750.
124 State Formation and Reformation

e¬orts of Vacarius in England, they were intended to set down a few principles
of Roman law that might be useful for practitioners.53 The Treatise called
Glanvill contained considerable knowledge of Roman law, e¬ectively displayed
in the classi¬cation of actions of debt and in the dialectical method.54 No doubt
this was because Glanvill was the student of Vacarius, the ¬rst law professor in
England, who founded the civil law school at Oxford. (English common law was
not taught in English universities in earnest until 1753 at Oxford.)55 The second
major treatise on the practice of the central royal courts, buoyant with Roman
legal science, was Bracton on the Laws and Customs of England, arranged accord-
ing to the tripartite persons, things and actions scheme of Justinian™s Institutes,
with extensive citation of the Corpus Iuris Civilis (the entire body of Justinian™s
texts, including the Institutes, Digest, Codes and Novels).56 Sir Henry Maine
ventured to call Bracton™s work ˜the plagiarisms of Bracton™.57
Indubitably, the private law doctrinal development of the common law and
the civil law took on considerable di¬erences,58 to the point suggested by Alan
Watson that ˜the stress on similarities in these two approaches is . . . funda-
mentally misplaced, and leads to serious misunderstandings of the two systems,
and of legal development in general™.59 Obviously there were di¬erences in the
systems. Yet a categorical acceptance of Watson™s assertion would be to overlook
˜the essential kinship, not of the Roman and the English law, but rather of the
Roman and the English lawyer™;60 and the similar constitutional development of
European kingdoms61 and the common legal science.62
By the end of the ¬fteenth century, the King™s Council, which had come to
handle more of the judicial business of the type which had previously been pre-
sented to parliament, generated a separate court, the Court of Requests, ˜which
had a distinctly Romano-canonical form of procedure, and which for this
reason had a number of civil lawyers among its personnel™. In the sixteenth
century, the Court of Star Chamber was also born of King™s Council, which fol-
lowed the Continental inquisitorial form of procedure used by the council.63
The doctrines and procedures of the Chancellor™s court, eventually the Court of

153 54
Re, ˜Roman Contribution™, 302. Donahue, ˜Ius Commune™, 1751“2.
155 56
See Baker, English Legal History, p. 170. Donahue, ˜Ius Commune™, 1752.
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. 67.
See van Caenegem, Western Constitutional Law, p. 7.
Alan Watson, ˜Roman Law and English Law: Two Patterns of Legal Development™ (1990) 36
Loyola Law Review 247“74, 248. W.W. Buckland cited in Watson, ˜Roman Law™, 248.
van Caenegem, Western Constitutional Law, p. 7.
After the notable continental codi¬cation initiatives from the late eighteenth century onwards,
modern civil lawyers attempting to understand ˜the true nature of Roman law™ may even have
been disadvantaged compared to common lawyers: Obrad Stanojevic, ˜Roman Law and
Common Law “ A Di¬erent View™ (1990) 36 Loyola Law Review 269“74, 274; Eugen Ehrlich,
Fundamental Principles of the Sociology of Law, trans. Walter L. Moll [1913] (Cambridge, MA:
Harvard University Press, 1936), pp. 254“95.
The Star Chamber procedure was part of the controversy which contributed in the following
century to the English civil war.
125 Territorial law and the rise of the state

Equity, showed considerable in¬‚uence from the ius commune, and for some
time civil lawyers practised before it. The church courts, from the middle of the
thirteenth century, followed the substantive canon law and Romano-canonical
procedure, and the High Court of Chivalry, emerging from the fourteenth
century, also followed the Continental procedure.64
Whilst common law lawyers were not required to have training in the ius
commune of the Continent, some of the common law lawyers were learned in
it. Early on, the university at Bologna had trained many English ecclesiastics in
canon law, which inspired a familiarity with Roman law which re-entered
England in the student™s intellectual baggage.65 Many lawyers practising in
England before the English revolution possessed polymathic quali¬cations
including civil law training,66 and many English judges tended to be quite
learned in the ius commune. Before 1600, references by common law practi-
tioners and judges to Continental law increased markedly. This included resort
to Roman legal classi¬cations such as ˜public and private, criminal and civil, real
and personal, property and possession, contract and delict, among other exam-
ples™, borrowed from Roman civil law and canon law taught in European uni-
versities. Between 1300 and 1600, more than 200 cases contained propositions
from canon law or civil law, excluding the many mentions of Latin maxims
derivable from Continental sources.67 Indeed, ˜England was never entirely cut
o¬ from continental legal culture.™68
At no point, however, in the absence of English local law, was reference made
to the ius commune for an authoritative statement of the law, as was the prac-
tice on the Continent.69 Why was there not a more profound reception of
Roman law doctrine in England? A number of suggestions have been made.
Perhaps it represented a historical rejection by the English of papal and imper-
ial in¬‚uence.70 Perhaps, too, the uniquely feudal landholding law fundamental
to English law (comprising ˜convoluted™ estates doctrine) was simply incongru-
ous with Roman law.71 Perhaps most signi¬cantly and uniquely, England had

Donahue, ˜Ius Commune™, 1754“5; see too Helmholz, Ius Commune, p. 3; Berman, Law and
Revolution II, pp. 212“13; van Caenegem, European Law, pp. 19“21.
Charles Homer Haskins, The Renaissance of the Twelfth Century (Cambridge MA: Harvard
University Press, 1927 reprinted 1993), p. 211.
See David J. Ibbetson, ˜Common Lawyers and the Law Before the Civil War™ (1988) 8 Oxford
Journal of Legal Studies 142“53, 147, on the disproportionate contribution of English lawyers
to the renaissance; Brian Levack, The Civil Lawyers in England 1603“1641 (Oxford: Clarendon
Press, 1973).
David J. Seipp, ˜The Reception of Canon Law and Civil Law in English Common Law Courts
Before 1600™ (1993) 13 Oxford Journal of Legal Studies 388“420, 388“91.
See Reinhard Zimmermann, ˜Savigny™s Legacy: Legal History, Comparative Law, and the
Emergence of a European Legal Science™ (1996) 112 Law Quarterly Review 576“605, 588.
Donahue, ˜Ius Commune™, 1747.
See James Muldoon, Empire and Order: The Concept of Empire, 800“1800 (New York: St
Martin™s Press, Inc., 1999), p. 96.
See Alan Watson, The Evolution of Western Private Law (Baltimore: The Johns Hopkins
University Press, expanded ed. 2001), pp. 244“7.
126 State Formation and Reformation

schools of customary law, the inns of court, unlike nations on the Continent
where only ˜the learned™ law (ius commune and Roman law) was studied in the
universities.72 Furthermore, the very fact of the grounding of early royal judges
in Roman law may have ˜immunised™ English law from the need for a more
radical reception. In this respect, the strength of English law may have been its
latent Romanist in¬‚uence which carried English law into the future.73

6.2.3 The diffusion of European common law
Today, the di¬usion of a cultural product, be it law or technology, may be bad
for some people, for example, if operating in an imperial-colonial fashion; or it
could be good, if it advances values perceived to be universally or regionally
bene¬cial, such as human rights or uniform contract rules. Consensus from
such debates may be elusive. What might be hoped for is debate based upon all
material facts, which requires appreciating the historical globalisation and law
precedents such as the interaction of European common laws and more local
particular laws. Lawyers are instrumental in achieving the di¬usion of law, with
di¬erent cultural e¬ects depending upon the arguments they employ. For
example, lawyers encouraged a centralised discourse of ius commune in Western
Europe, except in Germany. Fragmented German legal systems and principali-
ties received the support of legal authority marshalled by the lawyers.74 Today,
lawyers play a part in di¬usion depending upon the jurisdictions and discourses
they cite in submissions and base judgments upon, and the terms they deploy
in the agreements they draft.
France, Germany, Italy and England, on their ways to becoming states, were all
organised di¬erently, politically. On the Continent, in France, there was an
alliance between centralist kings and towns. Conversely, German principalities,
loosely united under the Holy Roman Empire, harboured an opposition between
the centralist Empire and towns, some of which were organised in the sovereign-
like Hanseatic League. Italy never looked like being united, and developed strong
city-states through commerce. Across the Channel, England was relatively
centralised very early on in the second millennium. All of these nascent states,
although di¬erently constituted, featured di¬erent laws but shared a familial
legal science. England, we have seen, was something of an odd bene¬ciary.
More than just four di¬erent systems of municipal law, or iura propria, there
were actually many competing systems within those municipalities grounded in
custom, together with a pervading legal science and a constitutionally bounded,
supranational ecclesiastical law. On the Continent, much of that customary
law came to be subject to the systematic discipline of Roman law under the

J. H. Baker, Oxford History of the Laws of England, Volume VI: 1483“1558 (Oxford: Oxford
University Press, 2003), p. 12.
See Baker, English Legal History, p. 28; Wieacker, Private Law, p. 82, n. 10.
See Wieacker, Private Law, pp. 66“7.
127 Territorial law and the rise of the state

scienti¬cally similar but doctrinally di¬erent systems of ius commune of the
various sovereign territories, using a Romano-canonical legal science. Early on,
the English too used this Western legal science for categorising laws as they
related to persons, things and actions. In all of these systems, the legal science
was primarily inductive in nature. Law was gathered from cases and commen-
taries “ as opposed to the deductive nature of working from all-important codes
or statutes characteristic of the nineteenth-century Continent. It must be
stressed that this commonality between England and the Continent operated
not particularly at the level of secular doctrinal law but at the general level of a
universalistic legal science “ a common Western legal science. It was a rational
practice, typi¬ed by ˜glosses on glosses of glosses™ of legal texts75 “ albeit a ratio-
nality deeply rooted in culture and custom. It could be traced back to Roman
law and the Western experience of its revival and conversion into a science
which emanated from universities such as Bologna in the eleventh century.
Perhaps, to employ globalisation parlance, and at the risk of oversimpli¬ca-
tion inherent in the terminology,76 these domestically sustained commonalities
are demonstrations of ˜globalised localisms™. That is, the globalised localism of
the papacy (which had state-like attributes) and the Romanist ius commune
were di¬used throughout Western Europe. Equally, there were localised glob-
alisms in this history, given that the Italian, French, German and English legal
and political systems all evolved di¬erently. Like today, Western Europe was a
normatively complex and rich place at this time. On the Time Axis, historical
references in Roman law and custom, and visions for a Christian future,
abounded in these legal systems. On the Space Axis, at nearly every level, there
were systems of norms, ideally, to guide conduct. The Space“Time Matrix was
relatively full of legal references and allegiances for the medieval human. Today,
however, legal references are commonly perceived only to come from the exte-
rior, political dimension of the Space Axis, not the cultural, morally engaged
interior. That law does, or that it should, in addition to the interior, moral
dimension, have references to history and the future for its vitality is a proposi-
tion of limited concern for most Westerners.
Of course, no human system is ever set solidly. Centralising tendencies were
in operation, territorially. The increase in commerce played a signi¬cant role in
this political tendency. As territorial rulers were gaining control over larger
spheres of containable disruption, the need became more urgent to close legal
systems from outside in¬‚uences, and to centralise, for administrative e¬ciency,
those systems operating at di¬erent levels within the sphere. Territorial scale was
important because of the increasing military costs, as was centralised taxation. As
such, the sovereign state was emerging with a programme for its own particular
rather than universal law. To grasp these tendencies, it will be helpful to examine
the ˜international™ legal thought evolving during this period (not that it was
known by this name) for an understanding of the regulation of interconnection

175 76
Kelley, Human Measure, p. 114. See ch. 2, section 2.1.4, pp. 31“2 above.
128 State Formation and Reformation

amongst political bodies in Europe and their constitution. This will also assist an
understanding of the role of God, and beliefs in ultimate reality and meaning, in
the construction of legal authority and order. God, as maintained by the papacy
and its universalistic canon law, was on the way out of international legal theory.

6.3 The decline of the Christian commonwealth
What were to become particular state legal systems had been, in the case of each
state or principality, a system of royal law in a plurality of legal systems consti-
tuting the universalistic legal pluralism of later medieval Europe. The other
systems such as feudal, urban, mercatorial and manorial law were tempered by
the increasing territorial centralisation of this state royal law, and the papacy™s
universalistic canon law at a supranational level. When that purportedly uni-
versal papal law began to lose authority, state legal particularity, in the form of
the royal law, was left with no real check. The emerging state law was autho-
rised mainly by new theories of political representation and consent, alongside
older notions of theologically justi¬ed right to rule. An idealistic, universalis-
tic trend for the emerging international law was now to be observed, theoret-
ically reliant upon human will mediated by states, signifying a secular rather
than Christian political approach to world order. This was to be known as the
movement from the Christian commonwealth towards European public law
(ius publicum Europaeum). This also symbolised the longer term move from
our rhetorical holy Roman empire and the real Holy Roman Empire (repre-
senting European unity in a more than symbolic fashion in the fourteenth
century)77 to a paradigm more driven by a secular and economic universalism.
Thus followed a contest between particular, political ways of conceiving
authority (positivism) versus purportedly universal (naturalist) ways. Although
initially grounded in theology, this political approach catered to a self-
referencing normativity which tended to delegate normative power to political,
institutional authorities on the exterior orientation of the Space Axis. Onwards
from the twelfth century, writings grew in sophistication and compellability
about the power of the church including popes, and secular authorities includ-
ing emperors, kings and the rights of subjects, amongst and between them-
selves.78 Not simply academic musings, social theories are of utmost importance
in these circumstances. The structure of legal orders is determined by ˜the par-
ticular intellectual and political style of the leader of the time™, according to
Wilhelm Grewe.79 As Philip Allott has written, ˜[t]he total social process of every
society contains a struggle to control the commanding heights of theory. The

Jacques Le Go¬, The Birth of Europe, trans. Janet Lloyd (Oxford: Blackwell Publishing, 2005),
p. 183.
See generally Pennington, The Prince and the Law, 1200“1600: Sovereignty and Rights in the
Western Legal Tradition (Berkeley: University of California Press, 1993), pp. 4, 37, 46 ¬.
See Grewe, Epochs of International Law, p. 23, writing about the Spanish, British and French
periods of paramountcy in European international law.
129 Territorial law and the rise of the state

history of every society is also a history of that society™s theories.™80 The theories
of positive and natural law, and the decreasing role for Christendom, are there-
fore crucial for understanding what was happening at the level of legal author-
ity as state societies collected on fragmented territorial lines.

6.3.1 The post-scholastic period
Shortly after Aquinas, Dante (1265“1321), in De Monarchia, contended that the
temporal power came directly from God (although subject to the pope in
certain church matters which connected earthly and eternal life).81 This was
part of a vision for a single world state.82 Most original and relevant for present
purposes was Dante™s conception of human unity, humana civilitas.83
The break of jurisprudence into factual positive laws which could be derived
from abstract natural laws (which were hypothesised) was set in train by
Marsiglio of Padua (1280“1342). He proposed, in Defender of the Peace (1324),
a primordial theory of popular sovereignty which bridged medieval imperial
and modern republican thought.84 This he based upon his personal experience
of the communal dynamic of Italian city-states, which had to that time been
relatively free from public clerical interference, now requiring defence.85
Marsiglio argued that the church comprised the whole church community,
and not just the priesthood. The priesthood, he submitted, was a human con-
struct for the bene¬t of the civil community. The civil community assumed an
importance hitherto unrecognised. Because Christ judges in the future world,
and it is the temporal ruler who maintains the peace for the priesthood to do
their work which is primarily of importance only in encouraging civil obedi-
ence, the ruler alone is essential to the well-being of society.86 That is to say, the
church, and Christ, were too far in the future to be relevant, politically, to the
present. The well-being of society depended upon the rational agreement of
citizens to the standards of the executors of justice. According to Marsiglio, the
social order should not be paternalistic along the lines of the family either,
because, as Aristotle wrote in the Ethics, there is no relationship of civil
justice between father and son.87 There had to be a human reason “ a civil

Philip Allott, Eunomia: New Order for a New World (Oxford: Oxford University Press, 1990),
[12.41]. Barber, Two Cities, p. 433.
David Gress, From Plato to NATO: The Idea of the West and its Opponents (New York: The Free
Press, 1998), pp. 223, 363. Muldoon, Empire and Order, p. 93.
Cary J. Nederman, ˜Empire and the Historiography of European Political Thought: Marsiglio
of Padua, Nicholas of Cusa, and the Medieval/Modern Divide™ (2005) 66 Journal of the History
of Ideas 1“15.
See Quentin Skinner, The Foundations of Modern Political Thought, 2 vols. (Cambridge:
Cambridge University Press, 1978), vol. I, pp. 18“22; Antony Black, ˜Communal Democracy
and its History™ (1997) 45 Political Studies 5“20, 13.
Joan Lockwood O™Donovan, Theology of Law and Authority in the English Reformation
(Atlanta: Scholars Press, 1991), pp. 22“6.
Cary J. Nederman, ˜Private Will, Public Justice: Household, Community and Consent in
Marsiglio of Padua™s Defensor Pacis™ (1990) 43 Western Political Science Quarterly 699“717, 703“5.
130 State Formation and Reformation

justice “ behind legal relationships, not simply a law based in habit or custom
for the sake of custom. Therefore the rigid authoritarianism of the papacy could
not be legitimate, in his view. Distinguished from Aquinas,88 law for Marsiglio
was concerned with the exterior dimension of social welfare, not the interior
dimension of individual salvation on the Space Axis.89
Secularisation of law and authority are apparent in this thinking. That is,
the mystery of the biblical, legal texts, guarded by a papacy with a custody
theologically grounded in the words of Christ himself to St Peter,90 was being
dislodged as the binding source of authority which attracted the interior,
moral, religious allegiance to its political authority. The church was being con-
ceived more in terms of a civil institution, not properly the domain of the mys-
teries and political vagaries of Catholic political theology being played out in
real life. Yet, for this proposed realism, there was a cost. If authority was to
come from the people (although still a privileged few from the nobility and
royal households), that authority could not be hung upon the same universal-
istic moral hooks of mysterious, sacred canon law and Roman law. This style
of terrestrial authority from the people was similar to, but heretically overshot,
the conciliarist notion91 of God™s will being mediated through the people™s
election. Marsiglio also modelled not only a direct sovereignty but a delegated
authority92 “ by analogy, what Rousseau was later to call ˜the general will™ “ by
which individuals delegated some autonomy to elected or hereditary repre-
sentatives. That could also attract moral allegiance because, after all, individ-
uals were being self-propelling of their own norms. Interior norm generation
and allegiance, however, can be alienated in this process by virtue of the dele-
gation of that human capacity to a representative body making decisions
without recourse. This occurred over many centuries, arguably to the detri-
ment of the twentieth-century concept of law.
The fourteenth century featured the germination of discontent with the pur-
portedly universal power and its guise of the holy, imperial norms which sought
to bind Western Europe through Christianity. A constitutional discourse devel-
oped around the projected universality of the emperor and papacy and the more
local constituencies within the empire. Bartolus (1310“52) reached a conclu-
sion about authority similar to that of Marsiglio on juristic grounds. In Roman
law, the citizen transferred all power to the emperor although maintained
the power to make customary law, tacitly.93 Bartolus and Marsiglio advocated

See ch. 5, section 5.4, pp. 109“10 above.
J. M. Kelly, A Short History of Western Legal Theory (Oxford: Oxford University Press, 1992),
p. 136. See ch. 4, section 4.4.1, pp. 84“5 above.
Skinner, Foundations, vol. II, p. 37. See generally Brian Tierney, Foundations of the Conciliar
Theory: The Contribution of the Medieval Canonists From Gratian to the Great Schism
(Cambridge: The University Press, 1955 reprinted 1968).
Skinner, Foundations, vol. I, p. 62.
Floriano Jonas Cesar, ˜Popular Autonomy and Imperial Power in Bartolus of Saxoferrato: An
Intrinsic Connection™ (2004) 65 Journal of the History of Ideas 369“81.
131 Territorial law and the rise of the state

city rule by ˜the people as a whole™. Monarchs are best elected openly (and not
in fear) rather than inherited, with limited discretion. Government should be
answerable through administrative checks between magistrates and ruling
William of Ockham (1285“1347), in this vein, advocated a meritocratic intel-
lectualism. By questioning scholasticism, and ˜the Anselmian concept of “faith
itself seeking understanding” ™,95 a sceptical rift was rent in the balance between
faith in the given order and reason. This was radical. The given order was not
necessarily rational. The positive law from earthly rulers and natural law
became more distinguishable. Ockham maintained that the law of nations (ius
gentium), which purported to regulate relations between peoples by reference
to their rulers according to custom, could not be derived from the natural law,
although this law of nations could be equal with natural law if natural law were
considered as divine positive law “ that is, as willed law. This distinction
between reason and will led to the breakthrough that, ˜for a precept to be nor-
mative, it must be commanded, either by God or human authority™96 “ there-
fore not simply found in natural law or reason without human consent. God™s
will, revealed in the Bible, could authorise divine positive law; consent, not
reason alone, became the key device for legitimating human law.
Even though papal supremacy came from God, under this new humanist
approach, the electors of the pope were the ˜ministers of God™s ordination™,
involving human agency in the constitution of papal authority. Furthermore,
Ockham argued against the universalism of church hierarchy if it contravened
human insight. The implication for the papacy was negative, for those best
quali¬ed to correct errors were those most capable of demonstrating them.
Erudite theologians who ranked more highly than the more lowly educated
prelates should wield authority in the church, for they possessed the intelligence
to point out errors. That is not to say that Ockham thought the pope did not
have spiritual authority over the emperor: he thought the pope did have that
power, in spiritual matters involving the correction of sin.97 Nonetheless, the
pope should rule with the knowledge and consent of the church, con¬ning
papal government to those things relevant to eschatology (the futurist doctrine
of the end times). Ockham also made a valuable contribution to human rights
in support of the Franciscan monks™ renunciation of property, by holding that
they still had natural rights to the necessities of life derived from nature, without
any human law grant.98

Skinner, Foundations, vol. I, pp. 62“5.
Jaques Le Go¬, Intellectuals in the Middle Ages, trans. T. L. Fagan (Cambridge, MA: Blackwell,
1992), p. 130.
See Francis Stephen Ruddy, International Law in the Enlightenment: The Background of
Emmerich de Vattel™s Le Droit des Gens (New York: Oceana Publications, 1975), p. 11, citing
Daniel O™Connell. See O™Donovan, Theology of Law, pp. 15“19.
Brian Tierney, ˜The Idea of Natural Rights “ Origins and Persistence™ (2004) 2 Northwestern
University Journal of International Human Rights 1“33, 21“2.
132 State Formation and Reformation

6.3.2 The renaissance
To facilitate interconnection amongst this political diversity, international law
began to take shape in the early renaissance period. Permanent embassies
started being established abroad.99 Less reliance continued to be placed in uni-
versalistic, ecclesiastical ideas of authority, as the spiritual and moral authority
of the Catholic church was increasingly displaced by the political authority of
the centralising states.
The developing discipline of international law was stimulated by the tremen-
dous overseas discoveries that were made about that time. During this period
also, broadly speaking, modern notions of consent and custom raised the
pro¬le of state positivism and particularistic state law over the interior, moral
operation of faith, reason and ideals in the universalistic Christian natural law.
This marked a major milestone in the secularisation of Western law. Orthodox
nineteenth- and twentieth-century jurisprudence rarely ventured beyond the
givenness of this split. The imperialistic and culturally arrogant idea of law as
exclusively a product of a modern civilised state (exterior and political), sepa-
rate from witch-doctors, churches and religion (interior, cultural sources of
norms), was to become so entrenched.
The ˜inter™ nature of laws of states, as in ˜international law™, was an ambigu-
ous achievement of world relations on the way to globalisation as the increased
interconnections amongst things that happen in the world. On the one hand,
the very thought, in a systematic manner, of ˜inter™ relations suggests a frame-
work within which increasing interconnections can take place. Yet, on the other
hand, the fact that this ˜inter™ was being worked out between increasingly strong
territorial powers suggests demarcation and insulation which, to be sure,
erected hurdles to the smooth tra¬c of these ˜inter™ relations at the level of
human interaction. The ˜world society™ observations in respect of globalisation
suggest those hurdles are now being dismantled.100 Emerging territorial powers
were, however, consolidating a plethora of parcellised sovereignties: taking the
example of the Habsburg Holy Roman Empire, 900 units were reduced to
300.101 Furthermore, this consolidation of sovereignty made possible the stan-
dardisation of weights and currencies which had to occur before the type of
capitalism upon which globalisation depends could take hold. Therefore inter-
national law had to develop, as a matter of practice and also of logic, before there
could be an increasing interconnection amongst things that happen in the
world, today, with less dependence on the state. Despite parallels between
medieval society and global society, global society would not have succeeded
medieval society without the intercession of the Western territorial state and
public international law.

199 100
Davies, Europe, p. 523. See ch. 2, section 2.3.4, pp. 40“2 above.
See Leo Gross, ˜The Peace of Westphalia, 1648“1948™ (1948) 42 American Journal of
International Law 20“41, 27.
133 Territorial law and the rise of the state

The work of Francisco Vitoria (1480“1546) marked a major move towards the
˜inter™ or intercourse aspect of the law between states as it was to develop. He saw
the perfection of political communities in their ability to act independently of
each other, with their own laws, councils and bureaucracies. In the absence of a
society of states, the papacy was otherwise the appropriate arbiter of the lawful-
ness of state conduct vis-à-vis other states.102 He attempted ˜to set up rules of
conduct inter gentes, between peoples™, denying imperial and papal claims to
supremacy and favouring, for example, the sovereignty of Indian princes in the
face of European colonialism.103 This appearance of enlightenment was, though,
conditional on certain terms which e¬ectively required the Indians to accept
Spanish commerce and exploitation of the soil.104 Vitoria re¬‚ects a humanistic
recognition of a universal humanity in all races. His contemporary, Vasquez,
articulated this in terms of a law between the rulers of free peoples, not between
the free peoples themselves. So marked the arrival of a public conception of inter-
national law involving a society which belonged to rulers rather than free peoples.
No doubt it was a goodly thing to have appreciated the universality of humanity
in all peoples. Problematic by today™s political standards was Vitoria™s intention
to achieve the conversion of the heathen to Christianity, notwithstanding his
apparent tolerance of other races,105 which imperial powers deployed to justify
colonisation. Papal justi¬cation of colonial jurisdiction, in addition to the con-
troversial use of ˜discovery™ as a means for colonial ownership, was based upon
the universalistic non-territorially de¬ned power to take care of Christian mis-
sionaries. Arguably this was a prescription for the missionaries to disguise terri-
torial jurisdiction in religion with a desire to break the Islamic domination of
trade and commerce in the Indian Ocean.106 This was no original ius gentium.
In classical Roman law, the ius gentium had been the law thought common to
all peoples and applied by all governments (such as laws against murder), as
opposed to the particular laws of a people (such as particular penalties),107 ideas
to be found earlier in Aristotle™s natural law thought.108 It developed from the
generalisation of principles from various peoples such as the Greeks and
Egyptians.109 Less well known is the war aspect. Gods were invoked in ceremonies
accompanying the conclusion of treaties, administered by the fetiales (Roman

102 103
Bobbitt, Shield of Achilles, p. 490. Ruddy, International Law, p. 12.
Bobbitt, Shield of Achilles, p. 491. See too James Thuo Gathii, ˜Commerce, Conquest and
Wartime Con¬scation™ (2006) 31 Brooklyn Journal of International Law 709“39, 730“4; and
generally Antony Anghie, Imperialism, Sovereignty and the Making of International Law
(Cambridge: Cambridge University Press, 2006), ch. 1.
105 106
Grewe, Epochs of International Law, pp. 25, 147. Ibid., pp. 257“60.
See Barry Nicholas, An Introduction to Roman Law (Oxford: Clarendon Press, 1962 reprinted
1991), p. 54, quoting Gaius. Whilst ius gentium and ius naturale represent the same idea, the
ius naturale is concerned with natural reason whilst the ius gentium looks to the universal
application of reason to real situations.
Aristotle, The Nicomachean Ethics (Oxford: Oxford University Press, 1925 reprinted 1980),
V.7, p. 124.
Paul Vinogrado¬, ˜Historical Types of International Law™ in The Collected Papers of Paul
Vinogrado¬, 2 vols. (Oxford: Clarendon Press, 1928) vol. II, p. 267.
134 State Formation and Reformation

heralds) in the collegium fetialium. In them originated the formality of the ˜just
war™. Under oath before the Roman gods, an assertion could be made by a fetialis
that a nation had violated its duties towards the Romans. Delegates of the fetiales
˜would demand satisfaction of the foreign nation™.110 Here the ambiguity of the
renaissance idea of ius gentium crystallises. The Roman war herald or fetialis idea
of the ius gentium was seized upon by renaissance thinkers, not the alternative
notion of it as a true, comparative law of peoples. The war herald idea was to
become the prevailing idea of public international law, entrenched by Aquinas
and originally advanced by Isidore of Seville (560“636). It pertained to laws of
wars, captivity, slavery, treaties and the like.111
The ius inter gentes of Vitoria and Vasquez was more in the nature of this
public international law notion of the ius gentium. Vitoria nonetheless appeared
to foresee a world community not grounded in treaties, because the people of
the world community comprised that community and happened only inciden-
tally to be constituted politically as states.112 Vitoria further entrenched the
di¬erence between positive law and natural law, echoing the dictum of the clas-
sical Roman jurist Ulpian, that although slavery could be contrary to the ius nat-
urale, as an o¬ence to natural equality, the consent of all peoples re¬‚ected in the
ius gentium could allow the tolerance of slavery as a matter of law.113 Therefore
the positivism of human will could not always be reconciled with the natural-
ism of reason and indeed did not have to be.
The continued relocation of authority from divinity to human consent is
starkly apparent in the notorious work of Niccolò Machiavelli (1469“1527), The
Prince. Disavowing the Christian commonwealth for the political virtues of the
ancients, his work is famed for its advocacy of political expediency. A contem-
porary of Martin Luther, Machiavelli led a ˜Secular Reformation™ of the state
which sought the subordination of religion to politics through a universalist,
civic humanism.114 By extolling fear as a better political tool than love,115
Machievelli™s political philosophy epitomises the excesses of state law. In appro-
priate circumstances, law should be coercive from the exterior dimension of the
Space Axis of the Space“Time Matrix (through ˜fear), as opposed to being com-
pelling at an interior, personal level (through ˜love™).

Arthur Nussbaum, A Concise History of the Law of Nations (New York. The Macmillan
Company, 1947), p. 16. If the thirty or thirty-three days of deliberation time allowed to the
transgressor passed without satisfaction, in the Republican days, ˜the fetiales would certify to
the senate the existence of just cause of war™; if declared, the war ˜would then be “just” as well
as “pious” ™ (p. 17). See generally Alan Watson, International Law in Archaic Rome: War and
Religion (Baltimore: Johns Hopkins University Press, 1993).
111 112
Grewe, Epochs of International Law, p. 83. Ibid., p. 146.
See Percy E. Corbett, Law and Society in the Relations of States (New York: Harcourt, Brace
and Company, 1951), p. 21.
Graham Maddox, ˜The Secular Reformation and the In¬‚uence of Machiavelli™ (2002) 82
Journal of Religion 539“62; J. G. A. Pocock, The Machiavellian Moment: Florentine Political


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