نظریه‌های سیاسی قرون وسطی

HAD what is here translated, namely, a brief account of the political theories of the Middle Ages, appeared as a whole book, it would hardly have stood in need of that distorting medium, an English translation. Englishmen who were approaching the study of medieval politics, either from the practical or from the theoretical side, would have known that there was a book which they would do well to master, and many who were not professed students or whose interests lay altogether in modern times would have heard of it and have found it profitable. The elaborate notes would have shewn that its writer had read widely and deeply; they would also have guided explorers into a region where sign-posts are too few. As to the text, the last charge which could be made against it would be that of insufficient courage in generalization, unless indeed it were that of aimless medievalism. The outlines are large, the strokes are firm, and medieval appears as an introduction to modern thought. The ideas that are to possess and divide mankind from the sixteenth until the nineteenth century Sovereignty, the Sovereign Ruler, the Sovereign People, the Representation of the People, the Social Contract, the Natural Rights of Man, the Divine Rights of Kings, the Positive Law that stands below the State, the Natural Law that stands above the State these are the ideas whose early history is to be detected, and they are set before us as thoughts which, under the influence of Classical Antiquity, necessarily shaped themselves in the course of medieval debate. And if the thoughts are interesting, so too are the thinkers. In Dr Gierke's list of medieval publicists, beside the divines and schoolmen, stand great popes, great lawyers, great reformers, men who were clothing concrete projects in abstract viii Political Theories of the Middle Age. vesture, men who fashioned the facts as 'well as the theories of their time. Moreover,-Englishmen should be especially grateful to a guide who is perhaps at his strongest just where they must needs be weak: that is, among the books of the legists and canonists. An educated Englishman may read and enjoy what Dante or Marsiglio has written. An English scholar may face Aquinas or Ockham or even the repellent Wyclif. But Baldus and Bartolus, Innocentius and Johannes Andreae, them he has never been taught to tackle, and they are not to be tackled by the untaught. And yet they ! are important people, for political philosophy in its youth is apt to look like a sublimated jurisprudence, and, even when it has grown j in vigour and stature, is often compelled or content to work with tools a social contract for example which have been sharpened, if not forged; in the legal smithy. In that smithy Dr Gierke is at home. With perfect modesty he could say to a learned German public \* It is not probable that for some time to come anyone will tread exactly the same road that I have trodden in long years of fatiguing toil.' But then what is here translated is^only a small, a twentieth, part of a large and as yet unfinished book bearing a title which can hardly attract many readers in this country and for which an English equivalent cannot easily be found, namely Das deutsche Genossenschaftsrecht. Of that work the third volume contains a section entitled Die publicistischen Lehren des Mittelalters, and that is the section which is here done into English. Now though this section can be detached and still bear a high value, and though the author's permission for its detachment 'has been graciously given, still it would be untrue to say that this amputating process does no harm. The organism which is a whole with a life of its own, but is also a member of a larger and higher organism whose life it shares, this, so Dr Gierke will teach us, is an idea which we must keep before our minds when we are studying the political thought of the Middle Ages, and it is an idea which we may apply to his and to every good book. The section has a life of its own, but it also shares the life of the whole treatise. Nor only so ; it is Membrum de membro. It is a section in a chapter entitled ' The Medieval Doctrine of State and Corporation,' which stands in a volume entitled \* The Antique and Medieval Doctrine of State and 1 In 1857 an American judge went the length of saying \* It is probably true that more corporations were created by the legislature of Illinois at its last session than existed in the whole civilized world at the commencement of the present century.' Dillon, Municipal Corporations, 37 a. We must not endeavour to tell 1 Wyclif, De Officio Regis (ed. Pollard and Sayle, 1887), p. 193: \* Sed non credo quod plus viget in Romana civilitate subtilitas racionis sive iusticia quam in civiliiate Anglicana.' 2 Starkey's England (Early Eng. Text Soc. 1878), 1935. xiv Political Theories of the Middle Age the story of the danger that beset English law when the future Cardinal Archbishop was speaking thus: a glance towards Scot- land would shew us that the danger was serious enough and would have been far more serious but for the continuous existence of the Inns of Court, and that indoctissitnum genus doctissimorum Jwminum which was bred therein. Then late in the sixteenth century began the wonderful resuscitation of medieval learning which attains its completion in the books and acts of Edward Coke. The political side of this movement is the best known. Anti- quarian research appears for a while as the guardian and renovator of national liberties, and the men who lead the House of Commons are becoming always more deeply versed in long-forgotten records. However, be it noted that even in England a certain amount of foreign theory was received, and by far the most remarkable instance is the reception of that Italian Theory of the Corporation of which Dr Gierke is the historian, and" whichjentres round the phrase persona ficta. It slowly stole from the ecclesiastical courts, which had much to say about the affairs of religious corporations, into our temporal courts, which, though they had long been dealing with English group-units, had no home-made theory to oppose to the subtle and polished invader. This instance may help us to understand what happened in Germany, where the native law had not reached the doctrinal stage of growth, but was still rather ' folk law' than lawyers' law and was dissipating itself in countless local customs. Italian doctrine swept like a deluge over Germany. The learned doctors from the new universities whom the Princes called to their councils, could explain everything in a Roman or would-be Roman sense. Those Princes were consolidating their powers into a (by Englishmen untranslatable) Landeshoheit : something that was less than modern sovereignty, for it still would have the Empire above it, but more than feudal seignory since classical thoughts about 'the State' were coming to its aid. It is noticeable that, except in his hereditary dominions, the Emperor profited little by that dogma of continuity which served as an apology for the Reception. The disintegrating process was so far advanced that not the Kaiser but the Fiirst appeared as 'the Prince' of political theory and the Princeps of the Corpus luris. The doctors could teach such a prince much that was to his Translator s Introduction. xv advantage. Beginning late in the fifteenth century the movement accomplished itself in the sixteenth. It is catastrophic when compared with the slow and silent process whereby the customary law of northern France was partially romanized. No legislator had said that Roman law had been or was to be received in Germany ; the work was done not by lawgivers but by lawyers, and from age to age there remained some room for controversy as to the exact position that the Corpus luris occupied among the various sources of law actual and potential. Still the broad fact remains that Germany had bowed her neck to the Roman yoke. In theory what was received was the law of Justinian's books. In practice what was received was the system, which the Italian commentators had long been elaborating. Dr Gierke frequently insists that tm's is an important difference. In Italy the race of glossators who were sincerely endeavouring to discover the meaning of classical texts had given way to a race of commentators whose work was more or less controlled by a desire for practically acceptable results, and who therefore were disposed to accommo- date Roman law to medieval life. Our author says that especially in their doctrine of corporations or communities there is much that is not Roman, and much that may be called Germanic. This facilitated the Reception : Roman law had gone half-way to meet the facts that it was to govern. Then again, at a later time the influence of what we may call the 'natural' school of jurists smoothed away some of the contrasts between Roman law and German habit. If in the eyes of an English lawyer systems of Natural Law are apt to look suspiciously Roman, the modern Romanist will complain that when and where such systems were being constructed concrete Rome was evaporating in abstract Reason, and some modern Germanists will teach us that ' Nature Right' often served as the protective disguise of repressible but ineradicable Germanic ideas. With the decadence of Nature Right and the advent of \* the historical school' a new chapter began. Savi^nyls teaching had two sides. We are accustomed to think of him, and rightly, as the herald of evolution, the man who substitutes development for manufacture, organism for mechanism, natural laws for Natural Law, the man who is nervously afraid lest a code should impede ' the beautiful processes of gradual growth. But then he was also xvi Political Theories of the Middle Age. the great Romanist, the great dogmatist, the expounder of classical texts according to their true which must be their original intent and meaning. There was no good, he seemed to say, in playing at being Roman. If the Common Law of Germany was Roman law, it ought to be the law of the Digest, not the law of glossators or commentators or \* natural ' speculators. This teaching, so we are told, bore fruit in the practical work of German courts. They began to take the Corpus Juris very seriously and to withdraw concessions that had been made some will say to national life and modern fact, others will say to slovenly thought and slipshod practice. But that famous historical school was not only a school of historically minded Romanists. It was also the cradle of Ger- manism. Eichhorn and Grimm stood by Savigny's side. Every scrap and fragment of old German law was to be lovingly and scientifically recovered and edited. Whatever was German was to be traced through all its fortunes to its fount. The motive force in this prolonged effort one of the great efforts of the nineteenth century was not antiquarian pedantry, nor was it a purely dis- interested curiosity. If there was science there was also love. At this point we ought to remember, and yet have some difficulty in remembering, what Germany, burdened with the curse of the translated Imperium, had become in the six centuries of her agony. The last shadow of political unity had vanished and had left behind a ' geographical expression,' a mere collective name for some allied states. Many of them were rather estates than states ; most of them were too small to live vigorous lives ; all of them \ were too small to be the Fatherland. Much else besides blood, j iron and song went to the remaking of Germany. The idea of a Common Law would not die. A common legislature there might | not be, but a Common Law there was, and a hope that the law of Germany might someday be natively German was awakened. Then in historical retrospect the Reception began to look like disgrace and disaster, bound up as cause and effect with the forces that tore a nation into shreds. The people that defied the tyranny of living popes had fallen under the tyranny of dead emperors, unworthily reincarnate in petty princelings. The land that saw Luther burn one 'Welsh' Corpus luris had meekly accepted another. It seemed shameful that Germans, not unconscious of According to Dr Gierke, the first man who used this famous phrase was S inibalclFieschi, who in 1243 became Pope Innocent IV. 1 More than one generation of investigators had passed away, indeed the whole school of glossators was passing away, before the Roman texts would yield a theory to men who lived in a Germanic en- vironment, and, when a theory was found, it was found by the canonists, who had before their eyes as the typical corporation, no medieval city, village or gild, but a collegiate or cathedral church. In Dr Gierkc's view ^Innocent, the father of ' the Fiction Theory,' appears as a truly great lawyer. He really understood the te: the head of an absolute monarchy, such as the catholic Church was tending to become, was the very man to understand them ; he found the phrase, the thought, for which others had sought in vain. The corporation is a person ; but it is a person by fiction and only by fiction. Thenceforward this was the doctrine professed alike by legists and canonists, but, so our author contends, it never completely subdued some inconsistent thoughts of Germanic origin which found utterance in practical conclusions. In particular, to mention one rule which is a good touchstone for theories, Innocent, being in earnest about the mere fictitiousness of the corporation's personality and having good warrant in the Digest\*, proclaimed 1 that the corporation could commit neither sin nor delict. As pope \ he might settle the question of sin, and at all events could prohibit the excommunication of an universitas\*, but as lawyer he could not convince his fellow lawyers that corporations must never be charged with crime or tort. Then Savignv^i s set before us as recalling courts and lawyers from unprincipled aberrations to the straight but narrow Roman road. Let us bring to mind a few of the main traits of his renowned doctrine. vice fungitur ' of Dig. 46, i, 22. Any modern text-book of Pandektenrecht will introduce its reader to the controversy, and give numerous references. Here it may be enough to name Ihering, Brinz, Windscheid, Pernice, Dernburg and Regelsberger as prominent expositors of various versions of the Roman theory. Among recent discussions may be mentioned, Kniep, Societas Publicanorum, 1896 ; Kuhlenbeck, Von den Pandekten zum biirgerlichen Gesetzbuch (1898), I. 169 flf.