. 6
( 14)


Thought and the Republican Tradition (Princeton: Princeton University Press, 2nd edn 2003).
See Niccolò Machiavelli, The Prince, trans. N. H. Thompson [1513] (Toronto: Dover
Publications, Inc., 1992), VIII, p. 23, XVII, p. 43.
135 Territorial law and the rise of the state

The Six Books of the Commonwealth, by Jean Bodin (1530“96) responded to
the crisis of authority in the French religious wars with an absolutist prescrip-
tion. Sharing some of the social contract absolutism of Thomas Hobbes
(1588“1679), Bodin de¬ned sovereignty as ˜the absolute and perpetual power
of a commonwealth™. This sovereignty was indivisible in nature and reposing in
the king (in France), subject to fundamental laws not generally employable
against the king,116 who was answerable only to God. Bodin rejected the Roman
notions of ius naturale and ius gentium for being unable to guide relations
between sovereign states. Bodin seems implicitly to have regarded the Roman
war herald idea of international law encompassing war, peace and treaties (ius
belli ac pacis) as being the closest Roman law idea relevant to laws between
states.117 Bodin also refuted the all-too-convenient justi¬cations for universal-
ist Christian rulership which had been based upon the imperial imagery of the
four kingdoms prophesied in the Book of Daniel.118 He showed that certain
overlooked (including non-Western) empires were more deserving of count
than the Roman Empire, especially as it had come to be represented by
Amongst other accomplishments, Gentili (1552“1608) assisted the decline of
the Christian universe of meaning120 by separating theology from jurispru-
dence. Theology should be left to theologians and legal matters should be left
to those who study jurisprudence. This was in keeping with the di¬erence
between those laws of the Ten Commandments which dealt with God™s relation
to humans (ius divinum “ the ¬rst table) and those other commandments (ius
hominum “ the second table) which dealt with human relationships with each
other. International law, according to Gentili, was of the ius hominum, contrary
to the insight of Aquinas, centuries before, which had linked universal human
law (natural law) to participation in the Eternal Law.121 Yet there was still in
Gentili a naturalist distance from positivism and an aversion to associating law
from naturalistic norms with cold, hard, posited facts of social life. As he wrote:
˜We are not seeking out facts, nor do we establish law from facts. On the con-
trary, we examine facts in the light of the law and forejudge what is to be
done.™122 He regarded international law as a universal order ˜in which things

Drawing upon medieval canonists, Bodin excluded from sovereign absolutism the arbitrary
deprivation of a subject™s property and the sovereign being judge in his own cause: see
Pennington, Prince, pp. 280“1.
Jean Bodin, On Sovereignty: Four Chapters from The Six Books of the Commonwealth, trans.
and ed. Julian H. Franklin [1583] (Cambridge: Cambridge University Press, 1992), pp. 1,
31“4, 45, 59“63, 100“2.
Cf. the deployment of this political theology to justify Charlemagne™s Roman Empire (ch. 4,
section 4.3, p. 83 above) and Roman law in the Lutheran Reformation (ch. 7, section 7.4.1,
p. 153 below).
See John Bodin, Method for the Easy Comprehension of History, trans. Beatrice Reynolds
[1565] (New York: Columbia University Press, 1945), ch. 7.
120 121
See Ch. 5, section 5.4, pp. 106“11 above. Ruddy, International Law, p. 17.
Gentili, cited in Corbett, Law and Society, p. 24.
136 State Formation and Reformation

divine and human are included . . . and we are members of a great body™.123 As
such, there is the semblance in Gentili of a world society for which humanity
bears a universalistic responsibility.
Francisco Suárez (1548“1617) supported the distinction between divine law
and human law, regarding the law of nations as a voluntary product of the
human will and therefore in the human positive law category.124 With a ˜what™s
good for the goose is good for the gander™ style of secularised universal
approach, he criticised the Spaniards for seizing territories from ˜barbarous
peoples™, writing that the discovery of such territory by Spaniards ˜gives no
support to a seizure of the abororgines [sic] any more than if it had been they
who had discovered Spain™; ˜barbarous peoples can be “true owners in public
and private law” ™.125 This continued the train of thought from Vitoria on the
distinction between the laws of actual people in states and not just the rulers (ius
gentium intra se) as opposed to the international law of states and rulers (ius
gentium inter se).126 He recognised the interdependent and interconnected
nature of human communal existence. It was up to a universal jurisprudence to
¬ll the vacuum left by the departure of the universal jurisdiction of the papal
Hugo Grotius (1583“1645) is often called, perhaps unjusti¬ably128 given the
paragraphs evaluating the sophisticated authors above, ˜the father of intern-
ational law™. He began to re¬ne a law among states, ˜based ultimately on natural
law, but more directly on custom, consent, and contract™ which attempted ˜to
reconcile the doctrine of state sovereignty, as advocated by Bodin, and the
medieval idea of the unity of Christendom™.129 It was contemporary and con-
nected with Hobbes™s social contract thought,130 although Grotius had a more
optimistic view of the natural law.131 Grotius derived his system of the ius
gentium voluntarium (voluntary international law) from a public international
law notion of ius gentium (the war herald as opposed to comparative law

Gentili, De Iure Belli Libri Tres cited in Gross, ˜Peace of Westphalia™, 32.
Gross, ˜Peace of Westphalia, 34; Kelly, Western Legal Theory, p. 211.
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.
See Grewe, International Law, p. 26; Philip Allott, The Health of Nations: Society and Law
Beyond the State (Cambridge: Cambridge University Press, 2002), [14.38].
See Cornelius F. Murphy Jr, ˜The Grotian Vision of World Order™ (1982) 76 American Journal
of International Law 477“98, 496“7.
See Grewe, Epochs of International Law, p. 188. According to Grewe, Grotius™s de¬nition of
natural law has been criticised as a combination of the de¬nitions of Vasquez and Suárez
and others (pp. 194“5). Grotius™s work featured a ˜simple lack of logical rigour which makes
it di¬cult to clarify some of the contradictions and absurdities of his text™ and he described
an impossible relationship between the law of nature and the voluntary law of nations
(p. 215). Ruddy, International Law, pp. 23“4.
See Kelly, Western Legal Theory, p. 212.
Grotius believed in human altruism and right reason, compared with the sel¬sh and asocial
tendencies of Hobbesian humans: see Murphy, ˜Grotian Vision™, 483“5.
137 Territorial law and the rise of the state

notion)132 which contained the multilateral law of nations grounded in a uni-
versalistic natural law,133 not limited to Christendom. Natural law, for Grotius,
was the essence of international commonality. This was, however, a di¬erent
type of natural law, which could be complemented by positive law. Although
positive law lay outside the realm of natural law and reason, in the free will of
men,134 positive law as a matter of will was capable of exterior, political alle-
giance, through participation in reason. The natural law was the timeless law
grounded in reason. For Grotius, this could exist even without God, based upon
˜man™s natural desire for society™, although not without entanglement in theo-
logical ¬ctions which showed a thinker seemingly ˜hedging his bets™ between the
power of his own discoveries and the old ways,135 with a strong sense of the
future and improvement. (Grotius, like the other progenitors of international
law mentioned so far in this section, appealed amongst other things to the hope
of salvation in the e¬ort to obtain compliance with international law.)
A Protestant, Grotius was a stepping stone for the development of secular
legal positivism.136 As such, Grotius applied ˜Roman law within the new nation-
state system which, however, technically departed from traditional distinctions
of the law™, grounded instead upon ˜brotherhood and universal love based on a
natural law that was Stoic-Christian in origin but secular in expression™.137
Exhibiting the tension between positive and natural law, Grotius does not
appear to have been troubled by the paradox that consensus could override the
natural law, for example, in the international law prohibition against killing
male or female prisoners and hostages which the natural law allowed.138 He
a¬rmed the rule of law in international law and con¬rmed the legitimacy of
treaties entered with in¬dels,139 advancing the exterior, objective quality of
international law on the Space Matrix. Unsurprisingly from all of this, Hersch
Lauterpacht wrote that it was impossible to classify Grotius as belonging to any
of the accepted schools of international jurisprudence.140
Samuel Pufendorf (1632“94) stands out, with Grotius, a little oddly in the
pattern being established, as a Hobbesian and a naturalist. His naturalism was
bold and perhaps retrograde for his time. Pufendorf accepted ˜Hobbes™ doctrine
that nations live in a state of nature in relation to one another, not being subject

132 133
See pp. 133“4 above. Ruddy, International Law, pp. 24“5.
See Verdross, ˜Natural Law™, p. 25.
Thus Grotius has been regarded as one who ˜admitted that there is truth, denied that we could
have knowledge of it, but agreed that many opinions of ours are probable™: Thomas Mautner,
˜Grotius and the Skeptics™ (2005) 66 Journal of the History of Ideas 577“601, 579.
See Hedley Bull, ˜Natural law and International Relations™ (1979) 5 British Journal of
International Studies 171“81, 175.
James A. R. Nafziger, ˜The Functions of Religion in the International Legal System™ in Mark
W. Janis and Carolyn Evans (eds.), The In¬‚uence of Religion on the Development of
International Law (Dordrecht: Martinus Nijho¬, 1991), pp. 155“6.
Corbett, Law and Society, p. 23.
H. Lauterpacht, ˜The Grotian Tradition in International Law™ in Falk, Krathochwil and
Mendlovitz (eds.), International Law: A Contemporary Perspective (Boulder: Westview Press,
1985). Lauterpacht, ˜Grotian Tradition™, p. 12.
138 State Formation and Reformation

to any common human master™; but rather than holding that this state of nature
was a war of all against all, Pufendorf claimed that the state of nature was one
of friendship and peace motivated by self-preservation. The laws of nature
derived their superiority from God, and natural law governed states in their
mutual relations: custom could have no legal authority.141 This was to prove
overly narrow in his utopian vision of international law.
The confusion between natural law and positive law, but the new recognition
of the political authority of consent grounded in positive law which was over-
taking natural law, was another demystifying chapter in the secularisation of
law. The Thirty Years War, to which we now turn, was prompting, in an apoca-
lyptic manner, the concept of a guaranteed state and international order.
Despite variations of emphasis amongst jurists in this process, international law
(and law in general, as we shall see in the next chapter) was becoming more exte-
rior to individual perceptions of morality, establishing itself as an institution
and political instrument at a cross-cultural level (although it was still often
disobeyed by emerging states). Interestingly, that political, exterior quality,
although decreasing the moral allegiance inspired by a Christian empire and the
mass adherence to that idea through a universe of meaning maintained, for
example, by ritual churchgoing, could actually attract a new type of moral and
cultural allegiance “ the allegiance which can come from being able to relate to
human consent. Such consent is easily alienable, though, from the norms
created by the representative or delegated body.

6.4 The arrival of the state
Developments in technology associated with the military revolution were of
great importance to the centralisation which took place and the reorganisation
of spheres of containable disruption along state lines, in accordance with our
observations about globalisation, technology and sovereignty.142 From the
sixteenth century, within Europe there developed improved musketeers and
gunners; the infantry pike to counter cavalry charges; the disciplined profes-
sional army; the cannon; increased tonnage, range and man“uvrability of ships;
the improved science of navigation; and systems of trenches and entrapments.
In addition, the sovereign model of territorial English and French states proved
economically superior at this time for standardising measures and coinage, and
establishing territorially organised legal systems. All of these factors required
new sources of income for administration by the monarch, and the economies
of scale deriving from the centralised government of broader territories.143
Despite the tyrannical behaviour of the papacy at times, the early twelfth
century Papal Revolution demonstrated the possibilities for good which could
arise from a centralised supranational power. Truces and peaces, prohibiting and

Corbett, Law and Society, pp. 24“5. See too Murphy, ˜Grotian Vision™, 487.
142 143
See ch. 3, pp. 25, 42“7 above. See Davies, Europe, pp. 578“9.
139 Territorial law and the rise of the state

regulating private wars, were good examples. The papacy™s abilities to compel
compliance with canon law have already been noted, chie¬‚y through interdic-
tion and excommunication.144 Excommunication often meant ostracism from
one™s community, with the prospect of eternal damnation. The papacy did,
however, lack the ability to enforce its law in some signi¬cant areas. It could not
prohibit treaties with non-Christian rulers.145 Although church norms were
articulated with all the political formality of modern law, such norms had
become too abstract. All very well it might have been to reign over the hearts of
a devout congregation, but it was another thing to be able to compel behaviour
in persons wielding power over tremendously large territories with much at
stake, economically and as a general matter of sovereign pride in the realm.
In chapter 4, we saw that in the ninth century, Charlemagne as ˜emperor™ had
made the ¬rst universal claim to rulership since the Roman Empire; limited,
however, to the Latin Christian West (although history does not tell us exactly
what he thought the title entailed). The secular sword of government (as
opposed to the spiritual sword of the Two Swords constitutional theory) was
otherwise grounded in a ˜tribe-sovereignty™ which pertained to the persons of
the tribe or nation and not the fact of territorial location. Territorial sovereignty,
on the other hand, was a ˜distinctly . . . tardy™ o¬shoot of feudalism “ of the per-
sonal rights attached to ownership of land. It was not until the Capetian dynasty
in France (from the tenth to fourteenth centuries), that a king had the gall to
call himself the King of France (the territory) and not the King of the Franks (the
people). He then stood ˜in the same relation to the soil of France as the baron
to his estate, the tenant to his freehold™. This person who had started as ˜the
feudal prince of a limited territory surrounding Paris . . . uniting an unusual
number of suzerainties in his own person™, became King of France.146
If in the Capetians can be found the conception of modern nationally and
territorially based sovereignty, then the gestation has been signi¬ed by the
Thirty Years War of 1618“48, delivering the popularly accepted year zero of the
sovereign state in the 1648 Peace of Westphalia. The Thirty Years War and its
aftermath have been described as the ¬rst global war, considering the Dutch
maritime expeditions striking at Spanish bastions in Brazil, Angola and
Ceylon.147 The peace settlement at Westphalia was, however, a profoundly
Western experience.

6.4.1 The Peace of Westphalia
Leading up to the Westphalian reorganisation, in 1555, at the Peace of
Augsburg, Catholics and Protestants had reached a compromise. Lutheranism

144 145
See ch. 5, section 5.3, pp. 102“3 above. Nussbaum, Law of Nations, pp. 26“7.
Maine, Ancient Law, pp. 88“9. See too van Caenegem, Western Constitutional Law, pp. 39, 76.
Paul Kennedy, The Rise and Fall of the Great Powers: Economic Change and Military Con¬‚ict
from 1500 to 2000 (London: Unwin Hyman, 1988), p. 40.
140 State Formation and Reformation

was to be allowed as the only sanctioned Protestant Christianity, each prince
being free to decide the religion of his subjects. In addition, Lutheranism was to
be tolerated in Catholic states.148 This compromise was shaky, as was to be
expected from the fractured politics of Europe, in the face of the breakdown of
the purportedly universal papal authority.
Two factors would lead to the Thirty Years War, applying Paul Kennedy™s
analysis of the Habsburg Holy Roman Empire™s ˜bid for mastery™, 1519“1659.
First, the Protestant Reformation and the Catholic Counter-Reformation
divided Christendom into transnational struggles over Christian doctrine (such
that ˜Europe™ became a more popular term than ˜Christendom™ for the political
geography).149 Secondly, the establishment Catholic Habsburg leaders, elected
often to the position of Holy Roman Emperor, had expanded to lands noted for
their ˜sheer heterogeneity and di¬usion™, making rulership di¬cult.150
Following the ˜Defenestration of Prague™, when Protestants threw two Catholic
members of the Bohemian Council from a window in 1618, the Bohemians
revolted against their Habsburg ruler, Ferdinand II. The Bohemian crown passed
to the Calvinist Elector Palatine, Frederick V. The Habsburgs then pursued
German territories and lands lost to the Reformation from the church.151
Christian IV of Denmark championed German resistance and was defeated in
1629. Into his place strode the Swedish Gustavus Adolphus II, with the aid
of French allies. France, keen to break Habsburg domination, joined German
Protestant princes and the Swedes, raising up enemies from within Italian city-
states and Spain, and also from Dutch provinces. These forces weakened Austrian
and Spanish Habsburg power, culminating in 1648 with the Peace of Westphalia.
Recognition was given, in the Peace, to French and Swedish territorial gains.
The independence of German princes was guaranteed, as was the independence
of Switzerland and the Dutch United Provinces (previously Catholic Spain™s
˜richest single asset™).152 For those subjects who had been denied freedom of reli-
gion outside the religion of their rulers, the component Treaty of Osnabrück
the right of conducting private worship, and of educating their children, at home
or abroad . . . they were not to su¬er in any civil capacity nor to be denied reli-
gious burial, but were to be at liberty to emigrate, selling their estates or leaving
them to be managed by others . . .; [and] a majority of votes should no longer be
held decisive at the Catholic and Protestant Diet . . . but should be settled by an
amicable ˜composition™ between its two parts or corpora.153

The other component Treaty of Münster provided for:
a moratorium of war, the settlement of disputes by peaceful means, and for indi-
vidual and collective sanctions against the aggressor, after a delay of three years. . .

See Davies, Europe, p. 504; Berman, Law and Revolution II, p. 51.
149 150
Davies, Europe, p. 496. Kennedy, Rise and Fall, pp. 32“3.
151 152
See van Creveld, Rise and Decline, p. 85. Davies, Europe, p. 534.
A. W. Ward cited in Gross, ˜Peace of Westphalia™, 22.
141 Territorial law and the rise of the state

[T]o facilitate reconstruction . . . two clauses were inserted . . . [O]ne aimed at
restoring freedom of commerce by abolishing barriers to trade which had devel-
oped in the course of the war, and the other intended to provide a measure of free
navigation on the Rhine.154

Importantly, this new constitutionalism contained the seeds of the secular, fun-
damental doctrines characteristic of globalisation in the twentieth century:
human rights; and free trade. The Augsburg principle of cuius regio eius religio
was also con¬rmed “ that is, whoever rules has the right to determine religion.
It seems fair to conclude that these component treaties, collectively the Peace
(or Treaty) of Westphalia, marked Western Europe™s ¬rst e¬ective written
secular constitution. In violation of previous usage, these treaties did not even
mention God.155 The waned hopes for a universal Christendom were angrily
expressed in the papal denunciation of the Westphalian settlement: Innocent X
described it as ˜null, void, invalid, iniquitous, unjust, damnable, reprobate,
inane, and devoid of meaning for all time™.156 The Christian commonwealth was
now entering a second phase. Although Christianity remained the benchmark
ideology in Western Europe, Christendom imploded in this second phase, asso-
ciated with internal ¬ghts for the spoils of colonisation, contrary to the ¬rst
phase in the eleventh century when there had been a united advance against
Islam in the East. At one stage, France even joined forces with the Turks against
the Habsburg/Spanish emperor, to the disgust even of the French people.157

6.4.2 Territorial consolidation and the decline of universality
The momentousness of the Westphalian settlement is di¬cult to comprehend,
even though globalisation brings us so much change today. That momentous-
ness was symbolic. There was no sudden revelation of a new political model.
The Peace of Westphalia was more of a signpost along the long road of territo-
rial consolidation.158 Of moment is the fact that Two Swords legal pluralism had
prevailed for over one thousand years in Europe and it was this undoing which
was re¬‚ected in the Westphalian treaties. Today, the state which is so easily taken
for granted has been around for less than four hundred years.159 Although state
sovereignty is often traced to this treaty, the Westphalian state system which it
legitimated does not represent the polar opposite of globalisation, as suggested
above.160 That is because, in the scheme of things, the state was a step in the
direction of globalisation. At least 600 parcels of sovereignty were reduced in

154 155
Gross, ˜Peace of Westphalia™, 25“6. van Creveld, Rise and Decline, p. 86.
156 157
Cited in Davies, Europe, p. 568. See Grewe, Epochs of International Law, p. 142.
See St©phane Beaulac, The Power of Language in the Making of International Law: The Word
Sovereignty in Bodin and Vattel and the Myth of Westphalia (Leiden: Martinus Nijho¬
Publishers, 2004).
See Arthur Ey¬nger, ˜Europe in the Balance: An Appraisal of the Westphalian System™ (1998)
45 Netherlands International Law Review 161“87, 165.
See n. 101 and surrounding text above.
142 State Formation and Reformation

the Holy Roman Empire of the Habsburgs as a consequence. Europe, over cen-
turies, was losing the Christian moral allegiance to the Two Swords constitu-
tionalism required for its supranational legal science. The state-centred system
of interconnection which we know as public international law is the result of
the political failure of medieval spiritual and secular moral universality.161 What
Christian moral universality did survive was splitting along state lines. To be
sure, a new mode of imperialism, which avoided that appellation for its
medieval Romanist and anti-republican baggage, emerged as some states such
as England and Spain acquired overseas territories.162 Sovereignty, considered
in modern times as ˜near-absolute law-making power conferred by constitu-
tional law™, became, however, a source of certainty; metaphysical and moral
questions could be assumed by the ˜unquestionable word of the sovereign in the
state™.163 Moral allegiance from the people was not necessarily to follow.

6.5 Lessons for a globalist jurisprudence
Conventionally, the Peace of Westphalia is credited with delivering the modern
notion of sovereignty and the European public law system “ the ius publicum
Europaeum. From the perspective of late twentieth-century globalisation and
supranationalism, two important constitutional principles of interconnection
emerged. First, freedom of religion and associated human rights emerged with
free trade in response to war. A prototype ˜most favoured nation™ equal import
tari¬ trading concept was related generally to the rights of merchants rather than
macroeconomics.164 The Treaty of Münster, we saw, explicitly sought to abolish
trade barriers which had developed during the war. In a foreign country, a mer-
chant could expect to be accorded the same status as his own country accorded
a merchant from that foreign country. The second important principle of inter-
connection is that religion became a matter for territorial determination. The
king (and later queen) became, in e¬ect, emperor in his (or her) own realm. It
symbolised the new gravitational force of the state to be able to propel its own
ideologies within its territory or sphere of containable disruption.
The legal pluralism which had embraced Europe became less widespread and
less plural as a result of state centralisation. A common Western legal science
remained, though. There were still universalist principles of world order

Josef L. Kunz, ˜Pluralism of Legal and Value Systems and International Law™ (1955) 49
American Journal of International Law 370“6, 371.
Muldoon, Empire and Order, ch. 6 and pp. 144“9.
See Neil MacCormick, ˜Beyond the Sovereign State™ (1993) 56 Modern Law Review 1“18,
Nussbaum, Law of Nations, pp. 30“1. An early example of such a clause occurred in a twelfth-
century treaty between Henry II and the city of Cologne: see Berman, Law and Revolution,
p. 344. On the origins of the most favoured nation concept in the middle ages and its
subsequent development in international law, see H. Neufeld, The International Protection of
Private Creditors from the Treaties of Westphalia to the Congress of Vienna (1648“1815): A
Contribution to the History of the Law of Nations (Leiden: A. W. Sijtho¬, 1991), pp. 110“12.
143 Territorial law and the rise of the state

formulated in the naturalist theories of authors such as Grotius, and legal
systems remained relatively similar in operation. The political theory of consent
was also establishing itself. The historical di¬usion of di¬erent legal systems in
the Europe of this chapter is fertile with signi¬cance today, as codi¬cation, har-
monisation and reform of local, regional and globalist laws are debated, to cope
with the modern diversity of laws and interacting cultures amidst common
ordering systems.
Something connected to the splintering universality of Christian ultimate
reality and meaning is still missing, however, from our historical investigations
of law and authority. Protestant political theology explains why there has, in
the modern West, been an unwillingness on the part of many to accept that
law can come other than from the state, given the ascendency of the ˜legislative
mentality™ which the Protestant Reformations established. Understanding the
Protestant Reformations is crucial for comprehending the authority of territo-
rial law and parliament today “ institutions directly involved in the mainstream
debates about globalisation. Attention must now turn to this transformation of
authority and the emerging focus of state law on the exterior dimension of the
Space“Time Matrix.

The reformation of state authority

If today it is possible to speak of the ˜globalisation of law™, we might equally
speak of the ˜state-isation of law™ which was occurring in the sixteenth
century. Looking to that process shows the triumph of state and territorial
constitutions over the universalist constitution of the Catholic church. The
arrival of Protestantism receives less than its deserved acknowledgement
for its contribution to territorial sovereignty as we know it. By e¬ectively
acknowledging the king as emperor in his realm and allowing him to use law
as a policy tool through legislation, the Protestant Reformations transformed
the universalist Two Swords legal pluralism which operated as a constitution
of moderation between the Catholic church and the kingdoms. Capitalism
and the rise of market values were to become readily justi¬able by a new
approach to ultimate reality and meaning which emphasised personal rather
than church responsibility for salvation. As the Catholic church lost control
of vital social institutions through the de-legitimatisation of its ˜holy™ doc-
trine, the state took over those institutions through doctrines more conducive
to Mammon.

7.1 The neglect of the Protestant Reformations by legal theory
Neil MacCormick has, in passing, recognised the importance to modernity of
˜the epoch of reformation and religious wars in sixteenth- and seventeenth-
century Europe™.1 ˜The Reformation has not been investigated as an event in the
history of the law™,2 wrote Sir Geo¬rey Elton about the Henrician Reformation
in England. The Reformations were largely responsible for the processes which
made the sovereign state into the constitutional entity challenged by globalisa-
tion. The Protestant Reformations are an untapped resource for comprehend-
ing the diverse, particular authorities which were established in opposition to
the universalism of our rhetorical holy Roman empire.

Neil MacCormick, Questioning Sovereignty: Law, State, and Nation in the European
Commonwealth (Oxford: Oxford University Press, 1999), p. 123.
G. R. Elton, ˜Lex Terrae Victrix: The Triumph of Parliamentary Law in the Sixteenth Century™,
in D. M. Dean and N. L. Jones (eds.), The Parliaments of Elizabethan England (Oxford: Basil
Blackwell, 1990), p. 16.
145 The reformation of state authority

Marsiglio of Padua, whom we encountered in the context of the decline of
the Christian commonwealth,3 was important for laying the philosophical and
juridical groundwork. He had maintained that the ruler has his primary origin
in the legislator “ the whole body of citizens “ with the power to depose rulers
and to make laws. For Marsiglio, civil law was characterised by its relationship
to coercion, not by the verity of its content. The priesthood was relegated, in
Marsiglio™s thought, from signi¬cance in the exterior, political dimension of the
Space“Time Matrix to the future orientation of the Time Axis “ the future life
or afterlife “ by being allocated the role of teaching God™s promises to men. The
truth or falsity of resurrection or eternal reward or punishment was irrelevant;
rather, the value was in the fear it struck in the human mind and the engendered
social order. The evangelical law was to distribute reward or punishment in the
future life in contrast to the worldliness of the civil law.4 The priestly, other-
worldly power was convenient for its use as a political tool for moral manipu-
lation in the present by secular government.
A salient reason for the failure of the universalist moral authority by which the
Catholic church had sought to regulate its body of believers was church cor-
ruption. Although the buying and selling of church o¬ces (simony) and clerical
marriage (nicolaism)5 were no longer the vices of the day, the selling of indul-
gences re¬‚ected poorly upon the Catholic church. There was much diversity in
the practice of the granting of indulgences. Alleged relics of holy personages such
as fragments of their bones or associated antiques such as pieces of the Saviour™s
cruci¬x were made compulsory purchases for members of the church, to gain
access to heaven. The Gregorian Reformation was failing: secular government
and society could not look to the Roman church for ultimate moral guidance;
the idea that grace and justice were concerns of a government inspired by the
church could no longer be taken seriously.6 Against this background, it became
more di¬cult for the church to maintain its ˜supranational™ jurisdiction.
Of broad signi¬cance to the Western world is the origin in the Reformations
of the state domination of law. A legacy of that presumptuous, ontological asso-
ciation of law with the state has been the presentation by contemporary legal
theory of supranationality, and more notably the constitutional jurisprudence
of the European Union, as threatening for its novelty. There was, in fact, an
advanced medieval precedent in Europe.

7.2 Supranationality legislation prior to the Reformations
Medieval Europe had been generally governed, as we have seen, by the Two
Swords constitutionalism of shared jurisdiction between the secular ruler and

See ch. 6, section 6.3.1, pp. 129“30 above.
Joan Lockwood O™Donovan, Theology of Law and Authority in the English Reformation
(Atlanta: Scholars Press, 1991), pp. 23“5. See ch. 5, section 5.2.1, p. 98 above.
See Harold J. Berman, Faith and Order: The Reconciliation of Law and Religion (Atlanta:
Scholars Press, 1993), p. 87, citing Myron Gilmore.
146 State Formation and Reformation

the papacy, which had comprehended a widespread legal pluralism. Emperors,
princes and kings had quarrelled for centuries with popes and bishops, within
legal parameters, about the proper scope of their respective secular and spirit-
ual jurisdictions. Other legal systems had subsisted, such as feudal, manorial,
urban and mercatorial law.
In France, in the second half of the ¬fteenth century, Louis XI had insisted
that judgments of ecclesiastical courts were subject to the review of the
Parlement of Paris and priests required permission of the king to travel outside
France.7 Papal taxes, appeals to Rome and election of French bishops were regu-
lated by the French Pragmatic Sanction of Bourges (1438) and the Concordat
of Bologna (1516). The German-speaking polities of the Holy Roman Empire,
of which there were 364, were subject to the jurisdiction of pope and canon law,
emperor and imperial law, and local princes and rulers. German laws compar-
able to those in France and England (discussed below) were understandably
more ˜sporadic™ in application.8
England had statutes of praemunire, ¬rst enacted in 1353 by Edward III
(reigned 1327“77). They were intended to protect the royal courts from inter-
ference by foreign courts. They ampli¬ed a prohibitory procedure originally
devised by Henry II (reigned 1154“89), staying proceedings in an ecclesiastical
court until the crown had decided where jurisdiction lay. By suing on a writ of
praemunire, an a¬ected applicant could seek to prevent a respondent from
having a matter heard in a court other than the king™s court; ecclesiastical
courts, in particular, were held to exceed their jurisdiction when there was a
remedy at common law.9

7.3 From ˜Two Swords™ to single sword sovereignty
Henry VIII (reigned 1509“47) was to use parliament to achieve his ends with
the result that exterior, political goals could be legislated in a manner which was
abstracted from the interior, moral atmosphere of the individual. This is what
I term ˜the legislative mentality™. The English emergence is explored because it
is paradigmatic of the mentality; and other European developments were not
as sensational. The general Western experience will later be considered more

See Martin van Creveld, The Rise and Decline of the State (Cambridge: Cambridge University
Press, 1999), p. 66.
John Witte Jr, Law and Protestantism: The Legal Teachings of the Lutheran Reformation
(Cambridge: Cambridge University Press, 2002), p. 41, and ch. 1 more generally with respect
to Germany.
Sir William Blackstone, Commentaries on the Laws of England, 4 vols. [1783] (New York:
Garland Publishing Inc., 1978), bk. IV, ch. 8; see too R. H. Helmholz, The Oxford History of
the Laws of England, Volume I: The Canon Law and Ecclesiastical Jurisdiction from 597 to the
1640s (Oxford: Oxford University Press, 2004), pp. 175“81.
147 The reformation of state authority

7.3.1 The English experience under Henry VIII
Henry™s marriage to Catherine of Aragon had failed to produce a male heir. This
failure was a failure to produce a monarch, despite the fact that they had already
borne a daughter, Princess Mary. No woman had ever sat on the throne in
England in her own right (as opposed to carrying the title ˜queen™ as an incident
of being the wife of the king), and it was doubtful that the subjects would now
submit to a queen so enthroned.10 There was also a fear that Mary might be
paired with a Continental ruler11 (as eventually she was). Henry™s bastard son,
the Duke of Richmond, could only further confuse the royal succession.12 King
Henry required a son for the constitutional stability of the realm. He had to
obtain a divorce from Catherine virtually at all costs. Pope Clement VII was not
minded to grant the annulment of the marriage as a matter of theology and also,
no doubt, because Catherine™s nephew, Emperor Charles V of the Holy Roman
Empire, at that time e¬ectively controlled the papacy. Nor would Clement, in
the political climate, have wished to undermine papal power by countermand-
ing the dispensation his predecessor, Pope Julius II, had granted Henry to marry
Catherine in the ¬rst place.13
The infertile seeds of Henry™s seemingly private issue gestated into a grave
constitutional problem at the most public of levels. The mechanism for usurp-
ing from the papacy the spiritual jurisdiction over the marriage was inge-
nious and also historically and legally grounded in Roman law and the logic of
legal manipulation. Henry invoked Roman public law, even though it had
never been received in England as positive law in any widespread doctrinal
sense. Justinian™s Corpus could be used to support the legal and political supe-
riority of the secular sphere as against the spiritual sphere. Indeed, the Roman
law had been used, in a less totalising way, for centuries in Europe for this
purpose, in France, Germany, Sicily, Bohemia and even by Richard II in
England, who reissued praemunire legislation in 1392. Rex in regno suo est
imperator14 “ the king is emperor in his own realm. In e¬ect, this condensed
the power of the Roman ˜lord of the world™ concept of the emperor (dominus

J. A. Froude, The Divorce of Catherine of Aragon: The Story as Told by the Imperial Ambassadors
Resident at the Court of Henry VIII [1891] (New York: Ams Press, 1970), p. 22.
J. J. Scarisbrick, Henry VIII (London: Methuen, 1976), p. 202.
S. T. Bindo¬, Tudor England (Harmondsworth: Penguin, 1964), p. 69.
Catherine had originally been married to Henry™s late brother, who had left Catherine a
widow. Henry had then obtained dispensation to marry Catherine. At canon law, in order for
Henry to have been able to have his marriage with Catherine annulled, there had to be some
reason, such as an invalid dispensation being granted to Henry in the ¬rst place. On the
theological arguments, see Scarisbrick, Henry VIII, pp. 219“29, for a discussion of the
prohibition in Leviticus 18: 16 and 20: 21, which seems to oppose the prescription in
Deuteronomy 25: 5 for the brother of a deceased man to marry the widow.
Azo (1150“1230) had de¬ned the independence of royal authority in this way: 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. 433.
148 State Formation and Reformation

mundi)15 into a neat territorial package. Henry VIII claimed to be emperor of
his realm “ of his sphere of containable disruption. The Corpus contained the
role and function of the late Roman emperor: it ˜conveyed the concept of prop-
erly understood monarchic government within the framework of that body of
law which had always been considered to be the acme of jurisprudential
achievement, even if it had not been “received” as a positive legal system . . .™16
[italics added].
The fact that there had been no positive reception of this jurisprudence, yet
that it could be regarded in the sixteenth century as an acme of jurisprudential
achievement to which resort could be had for authoritative norms, illustrates
the transcendent nature of Western legal science. This science could be con-
strained neither by time nor space. It also demonstrates the historical nature of
Western law, in particular the strategy for legitimacy which the past may recur-
sively provide for obtaining allegiance. The use of such ¬ctions is ˜a sign of
change occurring and a means whereby it does occur™ even though the ¬ctions
˜are legal rules which deem something to be so even though everyone knows it
is not™ [original emphasis].17 Henry VIII was no Roman emperor. Secular mon-
archs had assumed the plenitudo potestatis “ fullness of power “ which derived
from the papal vicarship of Christ and the constitutional position of the Roman
It was an identi¬cation with terminology which enabled Henry to apply the
formulation by Ulpian, glossed in the canon law by Gratian. This was notwith-
standing the fact that Roman jurists ˜had never analysed legislative authority,
jurisdiction, or delegated power in any systematic way™.19 The reasoning pro-
ceeded like this. Any government worth its name must have control of the
public law.20 ˜Public law covers religious a¬airs, the priesthood, and o¬ces of
state™: Digest Using this Roman public law theory, Henry was to attempt
to do to the church and more what Constantine, the ¬rst Christian Roman
emperor (reigned 306“37), had done in his time. Constantine, through the

On the dominus mundi concept, see James Muldoon, Empire and Order: The Concept of
Empire, 800“1800 (New York: St Martin™s Press Inc., 1999), ch. 4.
Walter Ullmann, ˜This Realm of England is an Empire™ (1979) 30 Journal of Ecclesiastical
History 175“203, 176. See too Franz Wieacker, A History of Private Law in Europe, With
Particular Reference to Germany, trans. Tony Weir (Oxford: Oxford University Press, 1995),
pp. 98“101.
See Keith Mason, Constancy and Change: Moral and Religious Values in the Australian Legal
System (Leichhardt: Federation Press, 1990), p. 68. It may be harsh to dismiss such archetypal
legal reasoning as ˜historical fabrications™ as does van Creveld, Rise and Decline, p. 84. Law and
constitutional development are invigorated by the ¬nding of ¬ctions and the making of
assertions by analogy: for example, the church as the bride of Christ, the king as the head, the
pope as the holder of the keys to heaven, the king™s body personal and body politic, We the
People of the United States etc. Pennington, ˜Law, Legislative Authority™, pp. 435“6.
See Pennington, ˜Law, Legislative Authority™, p. 430.
Ullmann, ˜This Realm of England™, 179“80.
Theodor Mommsen and Paul Krueger (eds.), The Digest of Justinian, trans. Alan Watson
(Philadelphia: University of Pennsylvania Press, 1985).
149 The reformation of state authority

application of corporate status, had given legitimate constitutional status to the
church whilst keeping it subordinate to the fully applicable public law. As a
corollary, Constantine™s imperial right to convoke church councils was con-
ceived to be within the public law. But Constantine did not interfere with the
˜complex christological matters™: he was ˜“the overseer of the external matters”
of the Church™ [italics added]. This is very signi¬cant. Interior moral allegiance
on the Space Axis was thought even then to come from the interior spiritual
realm governed by the church. This important Constantinean distinction
˜between internal and external matters was, as it were, canonised in no less a
place than the crowning formula in most royal coronation orders of medieval
Europe™. Ingenious prescience on the part of the young Prince Henry (or his
advisors) was to give him even greater regal licence. The changes reserved the
king™s right to act within the terms of the Roman public law in his function as
emperor of his realm. Secondly, by using the terms ˜royal™ and ˜imperial™ juris-
diction, and ˜crown™ and ˜dignity™ as interchangeable terms, Henry could be con-
stituted within Roman public law the more boldly.22
The Act in Restraint of Appeals was the vehicle by which this constitutional
innovation was implemented.
Where by divers sundry old authentic histories and chronicles . . . this realm of
England is an empire . . . governed by one supreme head and king . . . with
plenary, whole and entire power . . . to render and yield justice to . . . all subjects
within this realm, in all causes . . . without restraint or provocation to any foreign
princes or potentates of the world.23

The ˜divers . . . histories and chronicles™ upon which the new political theory
was founded made the Act in Restraint of Appeals the only act to call for the tes-
timony of historians for legitimacy.24 It was by this reasoning that the scope of
the Act in Restraint of Appeals could be legitimate, and the course of English
history altered: the monarch could have absolute authority in his own realm.
The ¬rst base of this was the king™s ancient personal sovereignty from which
derived all judicial authority in the realm. The second base was the king™s terri-
torial sovereignty, which was derived from a decretal of Pope Clement V in
1313: from the lex diocesana, subjects of the bishop, and by extension the king,
could not lawfully be cited to appear in court outside the territorially de¬ned
jurisdiction. For the king, this territorially restricted jurisdiction was in fact the
kingdom “ his newly expanded sphere of containable disruption. In delimiting
the domain of the territorial sovereignty of bishops, the pope had made that
domain inviolate. Henry could use this to his advantage: ˜no jurisdiction could
be exercised over the king by an organ extra territorium™. Furthermore, Henry
cited more canon law against the pope: nobody should be cited to attend court

See Ullmann, ˜This Realm of England™, 181“3.
˜The Act in Restraint of Appeals™: 1533: 24 Henry VIII, c. 12 extract in G. R. Elton, The Tudor
Constitution: Documents and Commentary (Cambridge: Cambridge University Press, 1960),
p. 344. Elton, ˜Lex Terrae Victrix™, p. 21.
150 State Formation and Reformation

if involving a journey of more than two days.25 The pope could not touch the
king in the regnal empery. Speci¬c spiritual (as opposed to Constantinean exter-
nal, ecclesiastical) matters were engulfed by royal authority by virtue of Henry™s
coronation as typus Christi (¬gure of Christ) and the nomination of the king,
centuries before by Bracton, as vicarius Dei (deputy of God).26
The authority of God had been the starting-point for the Henrician reform-
ers, although the way this authority was accomplished, through parliament as
the grand means of legitimacy, was radical. In England, in the Tudor period
alone, as much bulk in legislation was enacted as had been in existence to that
reign since the Magna Carta.27 Theologically, Henry™s headship of the church
was owed to God, under new Church of England thought; however, ˜the reality
of his powers as supreme head he owed to the common law, enlarged for this
purpose by the relevant legislative authority™.28 In o¬cial statements, the royal
supremacy was seen to originate not only with the lex divina but also with the
lex parliamentaria; the church existed under the rule of parliament, and not just
the king.29
The challenge to the social status of natural and divine laws by the king and
his parliament opened up the king™s law itself to challenge. The very resort
Henry made to parliament for monarchical power would be the eventual
undoing of monarchical power. Henry had unleashed ˜the legislative mentality™,
which parliament was able to usurp from him and subsequent monarchs.
Ultimately, this foreshadowed the parliamentary absolutism of modern times,
and the monopoly which the state claims over law. Parliamentary sovereignty
was set upon its trajectory, within a limited national territorial sphere of con-
tainable disruption.
Needless to say, Henry obtained his divorce, and several subsequent wives
with fewer regulatory impediments.

7.3.2 The general Western experience
In Germany, Lutheranism authorised the territorial prince as the ultimate
source of law.30 At the level of Western generality, monarchical and then leg-
islative absolutism was eventually to remove the moral attachments of ordinary
people from the laws governing them. The most important institution of law
creation was to become the territorial monarch acting with the royal council or
parliament, which could declare or make good or bad laws mechanically with

125 26
Ullmann, ˜This Realm of England™, 184“8. Ibid., 197.
See J. H. Baker, An Introduction to English Legal History (London: Butterworths, 4th edn
2002), p. 207.
Elton, ˜Lex Terrae Victrix™, pp. 25, 27. ˜[W]ithout the cooperation of parliament it would . . .
[have been] impossible to equip the royal supremacy with practical reality™ (p. 23).
Ibid., p. 31.
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. 65.
151 The reformation of state authority

the emerging state bureaucracy and associated coercive powers. Increasing
popular participation in law could of course increase the allegiance of those
involved in the creation of new laws or, much later, the election of politicians
for a mandated purpose. That is, however, a very political idea of law. It is also
particularistic, because it does not defer to ethical principles in the same way as
religiously based, universalist justi¬cations for law do. Although Western laws
mainly fall within the principled bounds of rule of law (except in revolutionary
times), the basis for legislated laws may be no more inherently just or moral
than the political ¬‚avour of the month. The Western world was being fractured,
and there were to be many di¬erent political worlds or states in the increasingly
incoherent normative universe of Europe, continuing the demise of our rhetor-
ical holy Roman empire.
Generally, in Western Europe, monasteries were dissolved and there was
large-scale con¬scation of church property “ 25“30 percent of all land “ in
Scotland, the Scandinavian countries, England, Germany, Bohemia, Poland,
Hungary, Switzerland, France and the Low Countries.31 In the German princi-
palities, Catholic institutions were secularised and populated by lay people,
with doctrinal changes implemented by local magistrates.32 The Habsburg
Charles V, as Holy Roman Emperor, was unable to contain the spread of
Lutheranism in Germany. Although defeating the Schmalkaldic League of
Protestant rulers, he failed to prevent the disa¬ection in Germany which was
encouraged by Henry II of France. When Charles ¬nally abdicated in 1555,
Protestant and Catholic rulers ˜swept through the country like raging boars™,
secularising church property.33 In Germany, secular courts took over ˜the crimes
of heresy, blasphemy, sumptuousness of dress™; marriage and divorce, wills and
charities were also assumed, and cathedral schools, libraries and universities
were all established and placed under the secular authorities, together with what
we now consider to be the ˜welfare™ obligations of a government.34
In many respects, the changes to the institutions of government were
minimal (apart from the new legislative facility). Ecclesiastical courts remained
ecclesiastical courts. The hierarchy was, however, capped at a territorial level. In
e¬ect, the church became a department of the state and the territorial borders
of the realm o¬cially garrisoned the inhabitants.

7.4 Protestant legal authority
In chapter 6, because of space constraints, attention to particular legal systems
was concentrated upon Germany and England. So too will attention now be
con¬ned to those territories for exploring the new legal philosophy. References

van Creveld, Rise and Decline, pp. 67“8.
See O. F. Robinson, T. D. Fergus and W. M. Gordon, European Legal History (London:
Butterworths, 1994), [10.6.1]“[10.6.3]. van Creveld, Rise and Decline, p. 101.
Berman, Faith and Order, p. 99; and his Law and Revolution II, p. 64; Witte, Law and
Protestantism, p. 84.
152 State Formation and Reformation

to legal authority can be broadly inferred to France and Switzerland when dis-
cussion refers to John Calvin in the balance of this chapter.

7.4.1 German legal philosophy
In 1517, Martin Luther famously nailed his Ninety-¬ve Theses on the door of
the church of the prince-elector of Saxony, in Wittenberg. The document called
for the abolition of papal jurisdiction and attacked abuses of papal authority
(including the sale of indulgences) and the interposition of the church between
the human and God. Three years later, he fuelled a bon¬re with writings includ-
ing Gratian™s Decretum and canon laws.
Lutheran legal philosophy was to preach the supremacy of the state given the
otherworldliness of Christ™s Kingdom. Philip Melanchthon posited this in the
Protestant manifesto, the Confession of Augsburg (1530). By this emerging
theory, the Catholic church, and the laws which it made and upheld, were
unnecessary for the salvation of the soul. Sinful humans were justi¬ed by faith
alone, not by works or actions (the theological doctrine of soli¬dianism).
Sinners, according to Catholicism, relied upon the divine authority of the
priesthood to hear the sinner™s confession and to prescribe the works (penance)
by which the sin could be purged. Church law, as the revelation of God, sought,
in addition, to o¬er the standards by which humans could minimise sin. Only
the Bible, for Luther, o¬ered this possibility. Law, to him, was irrelevant to this
process. Salvation could not be earned or mediated by the priesthood.35
With echoes of Marsiglio, Luther o¬ered a ˜two kingdom™ approach to polit-
ical theology, encapsulating, from the Augsburg Confession, the supremacy of
the state over the otherworldliness of Christ™s Kingdom. Humans were destined
to live ¬rst in the earthly and then in the heavenly kingdom. The visible polit-
ical regime of the secular authority should reign on earth. The spiritual regime
of the true church, for him, was invisible and did not extend to law: its visibil-
ity could extend only to preaching the word of God and administering the
The Thomist tradition of (natural) law had taught that divine revelation was
accessible to human reason; that is, in modern parlance, divine truth could be
the aim of law. Lutheran law, however, was not interested in truth outside the
already divinely posited Bible “ law was simply to enforce obedience. For Luther,
truth was of the second, heavenly kingdom, not a realistic concern for those
inhabiting the temporal ¬rst kingdom of the earth. Law as an expression of
human reason was ˜inevitably corrupted by man™s innate inclination to greed
and power™ and natural law was con¬ned to the Bible,37 making it di¬cult to

Harold J. Berman and John Witte Jr, ˜The Transformation of Western Legal Philosophy in
Lutheran Germany™ (1989) 62 Southern California Law Review 1575“1660, 1582; Berman, Law
and Revolution II, p. 42; Witte, Law and Protestantism, pp. 55“9.
See Berman and Witte, ˜Transformation™, 1586“90; Berman, Law and Revolution II, pp. 40“1;
Witte, Law and Protestantism, ch. 3. See Berman and Witte, ˜Transformation™, 1617“21.
153 The reformation of state authority

reconcile natural law with positive law.38 People were unable, without coercion,
it was thought, to avoid evil and do good by their own reason and will. An
attempt to involve the soul with law or its advancement through interpretation
was an incursion into God™s power over the soul.39 Consequently, the Ten
Commandments (not scholastic reason) were posited as the basic natural law
on Earth and used as a model for positive law.40 Yet, the Christian conscience
was the ultimate source for moral decisions and could disobey civil authorities
as a matter of inward re¬‚ection with God™s grace, although not as a matter of
human reason.41 Here we have a complicated recipe for civil disobedience;
although the state could practically smash that disobedience with its political
might. The trend to be identi¬ed is the written objecti¬cation of natural law
from an interior morality and conscience into an exterior, more readily identi-
¬able, standard to be administered by the state.
Roman law and the German ius commune which was perceived to embody
the German spirit were to ¬gure prominently in the thought of the Lutheran
jurist Philip Melanchthon. Chie¬‚y the attraction lay in the capacity for peace
which the imperial protection of the Roman law o¬ered in the face of the
Peasant War of 1524“5. There was also the continued theological association of
Rome with the last of the four monarchies of the Old Testament Book of
Daniel “ a monarchy which o¬ered a universal empire of God-given peace.42
Roman law was the law of peacemakers for four main reasons: it was written
and o¬ered certainty; equity was available if justice required the departure
from legal in¬‚exibility; arbitration was extensively described in two titles of
Justinian™s Corpus and equity was suited to arbitration; and, most importantly,
according to James Whitman, choice of law technology was very advanced in
the ius commune. That is, customary, parochial, interior territorial laws could
be embraced, on our Space Axis, in the compelling legal science of the more
exterior ius commune, provided proof could be adduced.43 The prospects these
factors o¬ered, overall, for peace in a violent Germany, were immense. By 1530,
this was re¬‚ected in Luther™s recantation of his early denunciation of lawyers.
He now referred to them as ˜Angels of the Empire™ and ˜Apostles of the Kaiser™.44

Wieacker, Private Law, p. 209; Witte, Law and Protestantism, pp. 124“5.
139 40
Berman and Witte, ˜Transformation™, 1627. Witte, Law and Protestantism, pp. 126“7.
Berman and Witte, ˜Transformation™, 1647; Berman, Law and Revolution II, pp. 92“3; and in
detail, Quentin Skinner, The Foundations of Modern Political Thought, 2 vols. (Cambridge:
Cambridge University Press, 1978), vol. II, ch. 7.
James Q. Whitman, The Legacy of Roman Law in the German Romantic Era: Historical Vision
and Legal Change (Princeton: Princeton University Press, 1990), pp. 4, 21“3. Cf. ch. 4, section
4.3, p. 83 and ch. 6, section 6.3.2, p. 135 above. On the medieval political theology, see
Muldoon, Empire and Order, ch. 5.
Whitman, Legacy of Roman Law, pp. 7“8. On this aspect of the ius commune, see ch. 6, section
6.2.1, pp. 120“1 above.
Whitman, Legacy of Roman Law, p. 23. On dismounting this antinomian platform of ˜jurists
are bad Christians™ and ˜I shit on the law of the emperor, and of the pope, and on the law of
the jurists as well™ to law as a blessing, see more fully Witte, Law and Protestantism, p. 4 and
ch. 4.
154 State Formation and Reformation

According to Melanchthon, law was to be used coercively by the state, where
necessary, to provide for an order of justice; to ensure safety; to make an
example of those punished to remind the people of God™s wrath; and to serve
as a reminder of judgement for those who did not convert to God.45
Melanchthon ˜redirected the “basic thrust” of the Reformation from being an
anti-law movement to a pro-law one™; the new Lutheran state paradoxically
came to be administered by something approaching a police state,46 authorised
by prototypical statute as the legislative mentality took hold. This was a major
precursor to legal positivism (although Lutheranism did have a place for con-
science, properly exercised in faith).
A crucial, interior dimension of legal creativity was being drained from
society. Law and its generation were strictly prescribed by the state. Although
law was not of itself spiritual, in Luther™s opinion, law could still be put to ˜spir-
itual uses™ to decrease evil in the world, to increase co-operation and to help
fallen man ˜to ful¬l his calling™.47 The magistrate was to serve the church, and
establish and maintain true religion.48 A paradox emerges. Whilst Luther sought
to remove the layer of the church between God and humans through the catch-
cry ˜every Christian a priest™, at the level of law, Luther inserted the state “ if not
as a level “ as an agent of normative intervention between humans and their
ultimate reality and meaning. God and the pursuit of meaningful and better
living through law were obscured. Super¬cially, this was a step in the direction
of the separation of church and state “ although, more accurately, it was a step
in the concentration of absolute normative authority being that of the church
and state in the hands of the state, leaving the church politically dependent if
not impotent.
Equity was transformed, too, in a manner formally di¬erent from the English
transformation discussed below, although with similar e¬ect. Whereas in both
pre-Reformation England and Germany, equity was administered by the chan-
cellor™s ecclesiastical court according to the Christian conscience, Johann
Oldendorp saw a merger of law and equity. Earthly magistrates were charged
with administering all laws equitably, because all rules essentially required ¬‚ex-
ibility.49 Conscience was territorialised.
As Henry VIII in England had made the laws of marriage a major issue in the
con¬‚ict between state and church, so had Luther in Germany. The Holy Roman
Emperor, the Habsburg Charles V, endorsed the canon law of marriage, in tune
with the pope. Luther maintained that the Roman heritage had passed to the
secular rulers of the formerly Roman world, including the Holy Roman Empire

Berman and Witte, ˜Transformation™, 1629; Berman, Law and Revolution II, pp. 80“1.
Gottfried G. Krodel, ˜Review Essay: The Opposition to Roman Law and the Reformation in
Germany™ (1993/94) 10 Journal of Law and Religion 221“66, 245.
Berman, Law and Revolution II, pp. 44, 75“6.
See James M. Estes, ˜The Role of Godly Magistrates in the Church: Melanchthon as Luther™s
Interpreter and Collaborator™ (1998) 67 Church History 463“83.
Witte, Law and Protestantism, pp. 174“5.
155 The reformation of state authority

of the German nation, entailing the Roman law of marriage as opposed to the
canon law. Consequently the emperor was obliged to follow the Roman law.50
˜The Reformation put an end to the universalist authority of the papal curia,
and the Roman empire became a national, German monarchy.™51 Although not
o¬cially to fall until 1806, the Holy Roman Empire came to a theological end
with the German Reformation.

7.4.2 English legal philosophy
The English experience embraced aspects of Lutheran theology together with
other Continental theologies such as those of Zwingli and Calvin, as part of a
seamed ˜garment™ of ˜various intellectual fabrics™. In the English Reformation,
law was more infused with God™s grace and less positivistic to that extent; God
manifested ˜His eternal will as law in the creation, preservation, redemption and
sancti¬cation of the world™; truth was knowledge of God™s laws. The exhorta-
tion to righteous disobedience in the event of a ruler™s command to violate
God™s law was similar,52 whilst still recognising the obligation of subjects to
submit to the ruler™s will in the ordinary course. As with Lutheranism, this was
a dual prescription which could be fraught with the timeless tension between
personal morality and government politics.
Like Luther, major English theologians of the time, for example Tyndale and
Cranmer, supported the ˜every Christian a priest™ credo with the aim of univer-
sal biblical literacy. The departure from Lutheranism by Erastianism “ the
English vision for secular control of ecclesiastical matters “ was featured in the
di¬erent function which the English ascribed to church law. Because God
˜ “withdraws His Hand” (of judgment) for His Son™s sake, the civil magistrate
should wield his so much the harder for the suppression of sin™, representing the
Calvinistic ˜increased passion for a divinely legislated polity in the church if not
in the commonwealth™.53 Outward forms of religious practice were still import-
ant. The interior, personal signi¬cance of spiritual and moral belief was still
somewhat connected to the exterior, political dimension of being a human in
society (although this connection was to be stretched to severance with the
development of the legislative mentality).
˜The international world of Lutheranism™ was present in the thought of
Tyndale, who appreciated the opposition of law and gospel, although who, like
his predecessors Wycli¬e and Fortescue, thought that salvation through Christ
and obedience to the law were not in opposition. The law showed up sin and
death, whereas the gospel beheld a new life through belief in justi¬cation
through faith in Christ. That belief “ ˜the Spirit of Christ™ “ caused one to

Whitman, Legacy of Roman Law, pp. 24“5. On Lutheran marriage law, see more fully Witte,
Law and Protestantism, ch. 6.
R. C. van Caenegem, An Historical Introduction to Western Constitutional Law (Cambridge:
Cambridge University Press, 1995), p. 9. See O™Donovan, Theology of Law, pp. 155“7.
See O™Donovan, Theology of Law, pp. 159“60.
156 State Formation and Reformation

consent to the law. On the Space Axis, law seems to have captured the inward-
ness of personal moral allegiance and balanced it uneasily with the outwardness
of politically necessary obedience to laws on the Space Axis: ˜it gives outward
form to the inward goodness bestowed by the Spirit of Christ™ [italics added].54
In Thomas Starkey, the civil laws were modelled on natural law, which aimed
to perfect civil life; although, as if an afterthought, ˜the keeping of the natural law
may be enough for salvation™,55 thus depriving civil law of sanctity. Starkey also
advocated the transference of constitutional powers, pre-empting the creation of
a cabinet from parliament, ˜appointed by the assembled parliament and invested
with its authority during the period of its dissolution™.56 All of these theories
could provide theological and political justi¬cation for the circumscription or
expulsion of the activity of the Roman church in England, and the reception of
the new Reformation attitude to law and the authority of legislation. Natural law
as the law of reason was overtaking natural law as posited divine law. Reason was
an increasingly secular logos or logic, which was being established as ˜reasonable™
by virtue of possessing an increasingly popular, territorial mandate.
The new relationship of the ecclesiastical and temporal spheres is well illus-
trated by the transformation of English equity. Prior to the Reformation, the
chancellor of the equity jurisdiction had occupied an ecclesiastical o¬ce. The
domain of the realm and the domain of the church had met in the chancellor,
who could award justice based upon principles of fairness. In equity proceed-
ings, it was the conscience of the defendant which was in question, which
required comparison to some objective standard. The ˜inner convictions of
every Christian™ or ˜general conscience of the realm™ was kept, as one justice put
it.57 Practically speaking, this had brought the representative Christian con-
science of the chancellor to bear on the temporality of the realm, on behalf of
the king. The equity of the Reformation, however, saw the king™s territorial con-
science replace that of the medieval chancellor, which was manifest in the new
constitutional theory. This was nothing less than ˜[t]he reduction of conscience
to particularity™ [italics added], as Timothy Endicott writes of equity at this
time. The projected universality of the chancellor™s Christian conscience, fol-
lowing our globalisation theme, was circumscribed and individualised within a
territory. No longer was there ˜any external check on the law at all, but only an
internal process of reconciling a rule to its rationale™.58 The submission of equity
to the common law was con¬rmed by the Statute of Uses in 1536.59

Ibid., pp. 56“60.
Thomas F. Mayer, ˜Starkey and Melanchthon on Adiaphora: A Critique of W. Gordon Zeeveld™
(1980) 11 Sixteenth Century Journal 39“49, 46. See O™Donovan, Theology of Law, p. 79.
See Harold J. Berman, Faith and Order: The Reconciliation of Law and Religion (Atlanta:
Scholars Press, 1993), pp. 71“7.
Timothy A. O. Endicott, ˜The Conscience of the King: Christopher St German and Thomas
More and the Development of English Equity™ (1989) 47 University of Toronto Faculty of Law
Review 549“70, 562“3; see too Christopher St German, Doctor and Student, ed. T. F. T.
Plucknett and J. L. Barton (London: Selden Society, 1974), pp. 13, 81“94.
Elton, ˜Lex Terrae Victrix™, p. 34.
157 The reformation of state authority

What of this transformation? With the mechanisation of law and equity as
answerable to something purportedly no higher than humans and their polit-
ical association, parliament was to replace the historically constructed Christian
conscience. Conscience lost its inherent transcendence over laws and degener-
ated into ˜a tortuous system of precedent™ characteristic of Western legal
systems. This transformation was expressed in the new, secular constitution
espoused by Christopher St German. With the fall of humans from God™s grace
in the Garden of Eden, property could be conceived as part of the law of man,
because property had not been needed in the Garden of Eden. Human laws were
necessary for the ordering of society after ˜the Fall™. Positive law could be as
important as the natural or divine law. The divine natural law of Exodus 20: 17,
˜thou shalt not covet thy neighbour™s house™ required clari¬cation by the posi-
tive law as to just when the house was thine or thy neighbour™s.60 That is, knowl-
edge of nature did not necessarily speak for itself in everyday life. Sensitivity to
such ˜adiaphora™ “ laws without necessarily universal signi¬cance,61 indi¬erent
to salvation62 “ was heightened by Protestantism. Positive law was required to
provide the particular implementation of universalist propositions, assuming
authority in and of itself.

7.5 Understanding the legislative mentality
The innovative as distinguishable from declaratory attributes of legislation
which were emerging from Reformation political thought and practice were a
Western experience. Previously, innovative legislation to address ˜the needs of
the moment™ had been principally associated with the papacy, as a right
recorded by Gregory VII in the Dictatus Papae in the Papal Revolution, to
avenge the subordinate role custom had assigned to the papacy.63 The innova-
tive legislative mentality was a new or at least only recently emerging phenom-
enon in the secular realm and it was to increase in intensity in subsequent years.
In Germany, there being no uni¬ed state or e¬ective central legislature, the
instrument was that of the ˜reformation ordinance™ as literally a ˜reforming™ legal
tool sometimes called a ˜statute™, which predated the Lutheran Reformation. Of
di¬erent types and origins typically in cities and territories, they could be small
or massive statements and restatements of varying authority. That they were

Endicott, ˜Conscience™, 558“60, latterly quoting St German™s Doctor and Student.
Aristotle discusses this concept of adiaphora, or ˜political justice™, as natural justice versus legal
justice: e.g., it may have been naturally obvious for a sacri¬ce to a god to be made in a given
context, but the content of the sacri¬ce itself was a matter of legal, or particular justice: see
Aristotle, The Nicomachean Ethics (Oxford: Oxford University Press, 1980), V.7, pp. 124“5.
See Skinner, Foundations, vol. II, pp. 103“5.
R. C. van Caenegem, An Historical Introduction to Private Law, trans. D. E. L. Johnston
(Cambridge: Cambridge University Press, 1988), pp. 86“7. As Gregory VII recalled from
Tertullian and St Cyprian, Christ said ˜ “I am the truth”. He did not say “I am the custom” ™:
Harold J. Berman, Law and Revolution: The Formation of the Western Legal Tradition
(Cambridge, MA: Harvard University Press, 1983), pp. 112, 258.
158 State Formation and Reformation

innovative is demonstrated by the adoption of the new Lutheran doctrines
blended with Catholic theology, canonical and civilian law.64 In France, codi¬-
cation of customs had occurred in the early sixteenth century. Reform was
inherent in this process because to establish the correct custom could be a
matter of choosing the better of two or more competing customs, although the
purpose was not innovation. That there were twelve independent territorial
jurisdictions with their own parlements meant that even the relatively cen-
tralised France made England the most paradigmatic and trailblazing of the
modern legislative attitude.65
Parliament in England was originally conceived as a court with both legisla-
tive and judicial powers, from the time of the Norman conquest in the late
eleventh century. Judicial or curial powers were demonstrated by parliament™s
concern to dispense justice to individual petitioners (a practice which was
declining in 1327), although legislative, or in modern terms, executive powers,
were exercised in the areas of diplomacy, taxation and public a¬airs.66 Medieval
enactments, or acts, which we associate by evolution with modern legislation
and parliaments, were, though, very di¬erent species. Indeed, in the late four-
teenth century, the word ˜act™ was used of a parliamentary product in much the
same way as the word was used in the New Testament book, ˜Acts of the
Apostles™: that is, as ˜a narrative of things said and done™.67
Legislation in medieval England was a royal facility. The king would consult
the barons and attempt to obtain their consent, for legitimacy. The legislation
of the Magna Carta, settled by King John and the barons in 1215, embodied
seminal ideas of liberty including due process, and represented something of a
treaty between king and nobles. It was regarded by Sir Edward Coke, writing
about it some four centuries later, as ˜but a con¬rmation or restitution of the
Common Law™68 (although critical historical research would point to the incon-
stant observance of its provisions and its irrelevance in many respects to the
commoner).69 The legislative powers were very di¬erent in scope from what
we now associate with parliaments. Enactments did not change the common
law. There was no clear distinction between adjudication and legislation.
Courts and parliament both originated in the royal council which advised the

See Witte, Law and Protestantism, pp. 15, 43“4, 182“4; Wieacker, Private Law, pp. 143“55.
On France, see Robinson, European Legal History, [12.2.1]“[12.2.5], [12.5]; and van
Caenegem, Private Law, pp. 87“94, for the Continent generally. On the background, see Susan
Reynolds, Kingdoms and Communities in Western Europe, 900“1300 (Oxford: Clarendon Press,
2nd edn 1997), pp. 45“51, 302“19; Alan Harding, Medieval Law and the Foundations of the
State (Oxford: Oxford University Press, 2002), pp. 186“200.
See Je¬rey Goldsworthy, The Sovereignty of Parliament: History and Philosophy (Oxford:
Clarendon Press, 1999), pp. 29“32.
See Morris S. Arnold, ˜Statutes as Judgments: The Natural Law Theory of Parliamentary
Activity in Medieval England™ (1977) 126 University of Pennsylvania Law Review 329“43, 336.
Sir Edward Coke, ˜The First Part of the Institutes of the Laws of England, 1628™ in James C.
Holt, Magna Carta and the Idea of Liberty (New York: John Wiley & Sons, 1972), p. 18.
See Edward Jenks, ˜The Myth of Magna Carta™ [1902], reprinted in Holt, Magna Carta,
pp. 22“37.
159 The reformation of state authority

king.70 Morris Arnold, who emphasises the innovative nature of legislation in
its history, admits as inconclusive the evidence in the thirteenth century that
legislation went beyond declaration and was innovative, by reference to the
silence of Bracton and other thirteenth-century treatise writers. As late as 1341
in England, Edward revoked one of his earlier enactments, because it was ˜pre-
judicial and contrary to the laws and usages of the realm™.71
In the late middle ages, parliamentary acts were not subject to the judges. Like
modern notions of parliamentary authority, parliament was assumed to repre-
sent the consent of the communities of England. This provided parliament with
the legitimacy to make declarations of the law and to give certainty to those
declarations (for example, removing doubts about the 1483 accession of King
Richard III by enactment in 1485). Around this time, such ˜declarations™ of
already existing laws could be considered ¬ctions in so far as the declarations were
used to cloak the innovation; a party could sue in parliament, according to Chief
Justice Herle, to make a new law “ parliament could make and unmake law.72
By the 1530s, and the Reformation of Henry VIII, it became acceptable to
credit parliament with the power to dispose of the crown, even on the admis-
sion of Sir Thomas More, who steadfastly refused, nonetheless, to accept the
power of parliament to terminate the power of the papacy in spiritual matters.73
Nevertheless, recall the ˜divers . . . histories and chronicles™ to which Henry VIII
appealed in order to ground his Act in Restraint of Appeals, attempting to dis-
guise a radical break within a conservative tradition.74 History was still very rel-
evant for legitimacy, as the Act in Restraint of Appeals shows, suggesting at least
a preference for declaratory legislation, even if just a cloak. In the face of par-
liamentary imperialism versus his impending Catholic martyrdom, Sir Thomas
More™s parting public words were that the parliament could do anything except
the impossible. This was a stand for universalist natural law against particular
state law “ in today™s terms, a stand for perceived timeless norms against incom-
patible state legislation (for example, positing abortion and homosexual mar-
riage).75 The impossible, for this former barrister, parliamentarian, author,
diplomat and chancellor, was the attempt to overthrow the papal jurisdiction,
although there were many grades of possibility open before this (then seem-
ingly) drastic stage was reached.76 Possibilities for legislative innovation by
consent were unleashed, although even late that century, Richard Hooker
records that statute often declared what was already common law.77

170 71
Baker, English Legal History, p. 204. Harding, Medieval Law, p. 256.
Goldsworthy, Sovereignty, pp. 29“40.
See J. Duncan M. Derrett, ˜The Trial of Sir Thomas More™ (1964) 79 English Historical Review
449“77; Richard Marius, Thomas More: A Biography (London: J. M. Bent, 1984), chs. 26, 27.
See pp. 149“50 above.
See e.g. Blake D. Morant, ˜Lessons from Thomas More™s Dilemma of Conscience: Reconciling
the Clash Between a Lawyer™s Beliefs and Professional Expectations™ (2004) 78 Saint John™s Law
Review 965“1009. See Goldsworthy, Sovereignty, pp. 59, 134.
J. M. Kelly, A Short History of Western Legal Theory (Oxford: Oxford University Press, 1992),
p. 185, citing Hooker™s Laws of Ecclesiastical Polity.
160 State Formation and Reformation

Prior to this time, there may have been odd demonstrations of innovation
such as the statutes of mortmain (preventing corporations from inheriting land
thereby preventing the avoidance of feudal dues) and the creation of new types
of estate in land, but the fact that legislators and kings still felt compelled to
make reference, as Henry VIII did, to custom and to God, indicates that even
the mind-set projecting late medieval or early modern constitutionalism was far
from the atheistic, electoral term-driven, goal-justi¬ed legislative mentality of
today. Statutes in the late medieval period were policies for the judges which
were to be ˜extended and restricted™, re¬‚ecting ˜the di¬erent relationship
between legislation and adjudication that prevailed at that time™. Powers of the
parliament, courts and King™s Council were blurred, each with the capacity to
draft and interpret legislation and to adjudicate.78
Checks and balances on government power had not, therefore, been
espoused in a modern sense. Not quite a modern legislative prototype, at least
until the Reformation there was a common law attitude of integrated commit-
ment to the exterior enunciation of positive law, morally referenced to perme-
ating Christian principles on the Space Axis, historically revealed in case law on
the Time Axis. That is, there was still a personal, moral aspect to the laws of the
community nonetheless posited from outside the community by the council,
legislature and judiciary. This process was subject to the interpretation of judges
trained in a common law reasoning which was entwined with the reason and
custom from the history of the community. This was Sir Edward Coke™s ˜arti¬-
cial reason™ of the law, which did not just defer to government policy.
Even in the early seventeenth century, parliament was regularly called a court,
although a court which could go beyond discovering and interpreting law. As
parliament became more associated with reason, and the common law with a
reason grounded more in custom, it seems that parliamentary innovation grew
in legitimacy. Because of its size and representative qualities, parliament was
better able to ˜judge™ what was best for the welfare of the people.79 Courts, there-
fore, were more concerned with nomos or custom. Parliament grew into a more
logos-orientated or rational institution, the rationality of which was political
and increasingly associated with limited democracy.
Medieval notions of the created universe and the centrality of religion were
not dislodged by the Reformations in one sweep of the sword. Signi¬cantly,
though, the conception was taking shape that the state was rightfully the law-
making monolith. Whereas the Catholic church had shared in government,
wielding the ˜spiritual sword™, state government took over both swords.
Reformation governments seized the spiritual sword in one hand and ruled with
the secular sword in the other, gradually melding from these two swords one
double-edged sword. The interior, personal, spiritual, moral allegiance edge of
this sword would grow increasingly blunt. The exterior, innovative, political
edge would grow increasingly sharp. The past would become less relevant to law

178 79
Goldsworthy, Sovereignty, pp. 44“5. See Goldsworthy, Sovereignty, pp. 114“20.
161 The reformation of state authority

as legislation. The vision for the future would become increasingly changeable
and less rooted in the past. Thomas More™s fate was a juncture for these trends.
The martyr™s execution is to be associated with the incomplete but irreversible
severance of legislation from its erstwhile predominating function of declaring
the status quo. At the very same time, the state as we know it was arriving.

7.6 Religion, Mammon and the spirit of capitalism
The ultimate, irreducible social authority of the God of our earlier enquiries has
changed considerably. No longer was the direct connection between God and
the purportedly universal Christian community upheld politically through
the Catholic church. Whilst that connection with the Catholic church was to some
extent usurped by state monarchies, the authority for law was very much trans-
formed. Consent became important as a strategic device for fostering legitimacy,
organised territorially, legitimated by territorial beliefs in ultimate reality and
meaning. Less mystery could be tolerated at a political level as law would become
more openly instrumental for achieving present goals. Social life, and law, became
subject to more earthly strategies for creating and maintaining authority.
Although enquiry into the doctrines of the Last Supper and Christian justi-
¬cation in a book about law and authority may at ¬rst seem abstract, recall the
insight of Philip Allott about social theory. ˜The total social process of every
society contains a struggle to control the commanding heights of theory. The
history of every society is also a history of that society™s theories.™80 These
Reformation theologies well illustrate how legal authority was transformed into
an ideology less attuned to Christian mystery, more compatible with material

7.6.1 Outgoing God in the Last Supper
About the time of the Reformation, the nature of the eucharist81 “ the Christian
communion ritual of the Last Supper “ was particularly divisive. The Catholic
church regarded this sacrament, undertaken in regular services and central to
them, as a re-enactment of Christ™s sacri¬ce. The church™s doctrine of ˜transub-
stantiation™ held that the bread and wine of the ritual were essentially if not mys-
teriously transformed into the elements of Christ™s body and blood, appearing
only outwardly to be bread and wine.
Luther departed from the dogma of transubstantiation, asserting that the sac-
ri¬ce was a unique event incapable of re-enactment. He believed the eucharistic

Philip Allott, Eunomia: New Order for a New World (Oxford: Oxford University Press, 1990)
[12.41]. See ch. 6, section 6.3, pp. 128“9.


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