From Greek cities to medieval monarchies, philosophers, theologians and jurists developed the intellectual frameworks of command. By mobilizing the ancients, the medievals thought about the conditions, purposes and limits of the exercise of power.
Trace « twenty centuries of European and French history of legality » from the time of the Greek cities to the kingdom of the Valois in less than 300 pages seems to be a challenge. However, this is what Yves Sassier, legal historian, great specialist in political powers, their foundations, actors and structures, achieves in The Prince and the law.
The author takes up the challenge of analyzing the nuances of the development of the law over a long period of time, which will be very useful to young and old researchers of Antiquity and the Middle Ages, but also to those who want to better understand our contemporary times. The Prince and the law draws on widely cited and translated scholarly works, which range fromNicomachean Ethics from Aristotle to the treatises of Nicole Oresme (XIVe s.) passing through Isidore of Seville (VIIe s.) or John of Salisbury (XIIe s.), with particular attention to commentators on Roman law who are much less known to the general public (Azon, Accurse, etc.). However, the reader has the impression of a new reading, as the depth of these works benefits from an enriched reading throughout a researcher’s life. Froissart, the famous chronicler of the Hundred Years’ War, beautifully translated this invigorating joy: “ I was looking for something new, a story that had never been told. I found it: it’s in Ovid “.
This book is therefore not yet another historiographical assessment of the development of the law, but a reappropriation of ancient and medieval heritage for a better understanding.
Questions
Reflection on the law began in the cities of Antiquity and has reached us in writing. One of the strong points of Prince and the law comes from the author’s ability to address the questions of the elders despite the multitude of parameters which confront the actors and receivers of the law with changing contexts. What is a law ? Why is it necessary ? On what foundations is it built? ? Who develops it ? Is it voted ? And by whom ?
The major place occupied throughout the medieval millennium by writings from Greek and Roman Antiquity is sometimes surprising, because the Middle Ages has often been defined as the dark and barbaric era which separated Antiquity and the Renaissance. Nothing could be more false than this cliché, because the medievals never ceased to draw on the ancient source. Mainly, because they celebrate those who came before them, who took the first steps, seeing themselves as “ dwarves on the shoulders of giants “. The sentence of Bernard of Chartres, quoted by John of Salisbury, expresses deference, but also the medieval conviction of seeing “ further “. This, in a concrete way, in the political domain, by looking in the past for what was lasting in order to draw inspiration from it – hence their unalterable admiration for Rome.
The Prince and the law translates this inspiration throughout the medieval period, the ancient source being variously known from the Ve At XIIIe century depending on the transmission of manuscripts, translations from Greek and Latin and the interest in this or that theme. The legal compilation ordered by VIe century by Justinian, Eastern Roman Emperor, was thus rediscovered in the West at the end of the XIe century, and causes a real “ big bang » of political comments and exploitation. Another explosion took place with the translations of Aristotle’s political works in the middle of the XIIIe century, also followed by comments and multiple recourses to his thought. Medieval opportunism leads readers of these works to draw heavily from them and above all to adapt them to the realities of their time, while relying on these “ authorities » which increase (“ auger “) the value of their writings.
There is nothing linear in Yves Sassier’s remarks, which does not reconstruct in a teleological manner a history of the law which would have evolved piecemeal from VIe century to the present day. If the concerns have changed, if the centers of interest have varied, if the contexts have obviously weighed, a certain number of notions remain enduring (justice, reason, adaptation to reality, etc.) and, above all, the desire to last. Generations of scholars have thus answered differently to certain immutable questions: is the prince, whether emperor or king, above the law? ? But what laws ? Human laws ? Those which were enacted before him ? Those he decreed ? And what about the laws of God ?
Determinations
Practicing the same method, that of investigation to tell the truth, the just and the useful, philosophers, theologians and doctors of law debate, and sometimes practice invective. When the civil lawyer Accurse (died c. 1260) thinks that everything is in the Corpus juris civilisthe philosopher Roger Bacon (died c. 1292) asserts that Aristotle says more in a few chapters than the entire book. Corpus juris civilis. Gilles de Rome (died in 1316) for his part describes the legalists (civilists) as “ political idiots “. The author of Dream of the Orchard (1378), himself a doctor of canon law and civil law, replies ironically that experience being the mother of all things, everyone could see if jurists are more idiotic than philosophers when it comes to advising the government well and judging well.
The countless debates, many of which take place in XIIIe century between masters within the university framework or through intermediary treaties, also share their goal: to provide those who govern and those who advise them with answers to the great questions of the art of government. Does legislative power belong to the prince ? And if so, by virtue of a delegation of the people, a concession or a transfer ? What is the role of the prince’s advisors ? What are the causes and registers of the law ? What are its limits ? And do the people have the power to resist ? These questions among others animate the reflection of scholars who resort to the abundant and prestigious Greek and Roman authorities at their disposal.
The ideals of legislative action stabilize around the goal expressed in the form of the common good of the community, but we see certain notions accelerate the legislative power of the prince. Necessity, with deep biblical roots, widely commented on by theologians and jurists, is one of the key words for reflection. There is the time of law (perennial) and there is the time of necessity, by definition impermanent. Certain legal practitioners (think of Philippe de Beaumanoir (died c. 1296), justify the royal power to make laws (“ establishments “) to establish and sustainably stabilize order and peace in the kingdom. But what about in case of necessity (war) or even in case of doubt of war ? Necessity stimulates the prince’s duty of foresight (p. 211-216) which can take legislative form. Another leverage word is reason, as the driving force of legislative power.
Anthology
Let’s end with an overview: from Ulpien to Oresme, Yves Sassier multiplies the references and quotations. As the author points out, not all periods were equally productive of legislation, and thee–XIe centuries saw a legislative drying up, at the time of the dispersion of power at the level of lordships and chatellenies (feudal times), a “ real shipwreck » (pp. 114-116). Some quotes taken from The Prince and the law thus punctuate the evolution of powers.
Some of them no longer even need to be accompanied by precise references to an author or a work) as they have been commented on (Ulpian) or literally digested by their readers (Isidore of Seville). Ulpian (died in 228), Roman jurisconsult born in Tyre, omnipresent in the Digestand some sentences of which have been commented on at length: Quod principi placuit legis habet vigorem (“ What pleased the prince was the force of the law “) opens the theme of theimperium of the prince, conferred by the people (p. 57-58). Likewise, Princeps legibus solutus est (“ The prince is freed from the laws “) requires us to distinguish and prioritize between natural, divine and positive laws (p. 61-63).
Isidore of Seville (died in 636), bishop of the Visigothic kingdom, concentrated in the Etymologiesa true encyclopedia of knowledge, on the qualities expected of a good law. This must be honest, just, possible, consistent with the nature of the homeland, adapted to the place and time, necessary, useful, clear, written not for any private interest, but for the common utility of citizens (p. 97). Then Hincmar of Reims (died in 882), archbishop of Reims, advisor to King Charles the Bald (grandson of Charlemagne), is at the origin of the principle of the permanence of laws beyond the person of their author (p. 109-112).
A political turning point is emerging XIIe century which tends to hierarchize laws, insisting on their permanence. Canonist, bishop, Yves of Chartres (died in 1115) is thus one of the first to affirm the hierarchy of the different sources of law, implying a close subordination of the laws of emperors and kings with regard to divine law (p. 128-129). From this, he suggests that the main role of kings is to respect the law rather than to create it (p. 130).
The resulting expansion of temporal powers XIIIe And XIVe centuries does not leave indifferent those who are seized by the anxiety of tyrannical risk, hence the valorization of the moderation of power, very sensitive in Nicole Oresme. Gilles of Rome, disciple of Thomas Aquinas, is known for The government of princestext intended for the future Philippe IV the Beautiful, and from which we remember this key phrase: “ laws must become customs, because the older the observation of a rule, the more difficult it is to contravene it » (p. 209). Finally, Nicole Oresme (died in 1382), advisor to the Valois, was also a translator of Aristotle into French, which led her to create numerous political neologisms at the origin of a large part of the modern political lexicon (p. 242).
The Prince and the law seduced by the intertextuality of the development of laws, which Yves Sassier practices because of his deep knowledge of the sources of law. No tabula rasa during these twenty centuries neither immobility, but the conviction that the law was not an end in itself, but a means of achieving the legal order (peace, justice, public utility, common good, etc.) which goes beyond the ruler.