Fr. Thomas Crean and Prof. Alan Fimister have recently published their “manual,” Integralism (“C&F”). While the debates over integralism to date have centered on the subordination of the temporal power to the spiritual power, Crean and Fimister have an altogether more ambitious goal: they hope to present a coherent vision of Catholic politics, jurisprudence, and political economy. It would, however, be a mistake to think that they present a descriptive case. They have an agenda. There are numerous examples of this fact, but one of the clearest is their treatment of the civil law tradition compared to the common law tradition. A quick inspection of one aspect of their treatment, which takes up only a couple of paragraphs in their chapter on law, reveals not only their agenda but the manner in which they pursue it.
At the conclusion of their chapter on law, Crean and Fimister turn their gaze to the civil law tradition. Their entire argument seems to be that the Roman law tradition, which is to say the civil law tradition, represents the deified total state (cf. C&F p. 140). The citizen of the civil state becomes the abject subject of Leviathan (C&F pp. 140–41). The common law, on the other hand, expresses the spirit of liberty, and is in fact the true law of Christendom (C&F pp. 139–40). Reading such ringing endorsements of the common law and the English constitution, one wonders whether Crean and Fimister ought to have titled their book Merrie Olde England instead of Integralism. They seem unconcerned with the fact that they are declaring incompatible with Christendom the legal system of the Holy Roman Empire and the kingdoms of the Continent, all of which have as sound a claim on the name “Christendom” as their idealized England before the so-called reformation.
Moreover, while one might sympathize with Crean and Fimister’s evident desire to make England before the so-called reformation the very mirror and pattern of Christendom, it will be seen that that desire finds little support in the history of Christendom. England is not so far from Rome as they would like. Indeed, it will be seen that the great English lawyer Bracton relied heavily on continental sources such as Azo and the canonist Tancred, both active in Bologna, as well as on the canonical tradition. The idea that the foundations of civil law lead to totalitarian tyranny while the foundations of the common law lead to the very spirit of liberty is risible because, at least in this most important regard, they share a common foundation.
I.
What makes it worse is that Crean and Fimister’s argument about Roman law (and therefore the civil law tradition) is not all that sound. At the outset, it is necessary to correct an odd omission in Crean and Fimister’s argument. They assert that Justinian followed Gaius on the sources of Roman law with one exception: the Lex Regia (C&F p. 137). Justinian uses the Lex Regia to paper over his legal positivism, they say (C&F pp. 137–38). The problem with this claim becomes evident almost as soon as one opens the Institutes, however. Gaius listed the constitutions of the emperor among the sources of Roman law in Institutes 1.2. He goes on to list the various kinds of constitutions (decrees, edicts, and letters) of the emperor in Institutes 1.5. He concludes by asserting that all of these documents have the force of a lex because the emperor received imperium through a lex.
It is worth noting, as Peter Brunt does in his masterful study of the Lex de Imperio Vespasiani, that Gaius does not say that the magisterial edicts (i.e., the edicts of the praetors, quaestors, and aediles) have the force of a lex (cf. Inst. 1.6). The opinions of the jurists do have the force of a lex, however, provided they are unanimous on the point (Inst. 1.7). If they are divided, then the judge may choose the opinion that suits him (ibid.). It is, therefore, strange that Crean and Fimister would assert that Justinian’s reliance on the Lex Regia is a novelty. Gaius listed the constitutions of the emperor among his sources of Roman law and asserted that the constitutions of the emperor, unlike the edicts of the higher magistrates, had the force of a lex.
Here Crean and Fimister are simply wrong when they characterize the Lex Regia as a suspension of the ordinary operations of the magistrates—i.e., the institutions of the Republic—in favor of the emperor’s power. Gaius makes it clear that the higher magistrates continued to function (along with the Senate, for that matter). Their edicts, however, did not have the force of a lex. Likewise, Justinian’s Digest has a long passage at the end of book 1 setting forth the duties of the various magistrates (Dig. 1.10–1.20). It is true that Justinian claimed extraordinary authority (Codex 1.14.12), but even then he is careful to claim the authority of the Lex Regia to do so (Codex 1.14.12.1).
Finally, the relevant passage in the Digest (Dig. 1.4.1) tracks Gaius’s summary closely, though it is taken from Ulpian’s Institutes. The emperor’s constitutions have the force of a lex because the authority and power of the people are transferred to the emperor by means of the Lex Regia. The Digest provides generally the same definition of the emperor’s constitutions as Gaius does (Dig. 1.4.1.1). Though it is odd that Crean and Fimister don’t discuss the other provisions in the same section of the Digest, notably the eminently Thomistic provision calling for stability in decisions (Dig. 1.4.2).
One would imagine that Crean and Fimister, evidently deeply interested in Roman law and its consequences, would discuss the Lex Digna. The Lex Digna is the common name for a provision of Justinian’s Codex, collecting the constitution of Theodosius and Valentinian to the Praetorian prefect Volusianus, stating that it is worthy of the emperor to proclaim himself bound by the laws because the emperor’s authority depends on the authority of the law (Codex 1.14.4). The implication that Justinian, by means of the Lex Regia, established wicked positivism is not so clear in the light of the Lex Digna. It is also not so clear in light of the Lex de Imperio Vespasiani, but there are enough questions surrounding the connection between that enactment specifically and the Lex Regia that I have refrained from bringing it into the discussion. It is enough to say that Crean and Fimister make no effort to harmonize Justinian’s use of the Lex Regia with the Lex Digna.
Throughout Integralism, despite Crean and Fimister’s all-too-authoritative tone, one has the sense that one is reading the brief of a party. The case of Gaius and Justinian demonstrates the care one has to take with their handling of their sources. It is true that they imply in a footnote that Justinian was following a tradition dating back to the accession of Tiberius. They don’t quite explain what they mean by this. However, even if they did, it would not make up for the fact that the tension they attempt to create between Gaius and Justinian is, in fact, the opposite of the case.
II.
Crean and Fimister also mention the rediscovery of Justinian, especially the Lex Regia, in the Middle Ages. They argue that the adoption of the Lex Regia by medieval rulers led to civil legitimacy being placed on the basis of popular sovereignty (C&F p. 138). However, they fail utterly to engage with the medieval tradition—particularly, oddly, the English tradition—and modern commentators on that tradition like Pollock and Maitland or Ernst Kantorowicz. Considering that they think that this move leads to the contractual, artificial modern state, one would expect them to spend a little more time churning over this question.
One finds the Lex Regia and its close companion, the maxim, Quod principi placuit legis habet vigorem (Inst. 1.2.6) in important early sources of English law. To connect the dots, the reason why the pleasure of the emperor had the force of lex was because of the Lex Regia (ibid.). For example, the prologue to Glanvill’s Tractatus de Legibus cites the maxim Quod principi placuit. Bracton discusses it at somewhat greater length (f.107b). Considering how important Bracton is to English law, it is yet another mystery of Crean and Fimister’s treatment that they do not mention it at all. Happily, Kantorowicz and Pollock and Maitland do.
For one thing, Kantorowicz and Maitland demonstrate that there was not a great gulf between England and Europe in the Middle Ages, particularly on the questions we are discussing here. Maitland’s brilliant parallel edition of Azo and Bracton shows that the Englishman relied heavily on the Bolognese Azo for important components his concept of Roman law. Kantorowicz, in The King’s Two Bodies, which treats this subject at length, argues that Bracton follows Azo pretty closely here. And not just Azo and not just here. Pollock and Maitland, in their towering History of English Law, note that Bracton’s debt to the civilians is “inestimably great.” Bracton also likely had access to other parts of the Corpus Iuris Civilis—as well as the Decretum, the Decretals, and the Dominican canonist Tancred of Bologna.
At any rate, Bracton mentions the Lex Regia in the context of a longer argument about the king’s ordinary jurisdiction (f.107–f.107b; Travers Twiss ed., vol. 2, pp. 171–76). Bracton’s overarching argument is that the king’s power is fundamentally the power to do justice. However, in doing justice the king must rely on right (cf. Dig. 1.4.1). Bracton mentions the Lex Regia as a possible objection. That is, he imagines an interlocutor answering his claim that the king cannot act except according to right with the maxim Quod principi placuit. Bracton next does something interesting.
The grammar of the passage in f.107b is not quite clear, but Bracton means to say that according to the Lex Regia, what pleases the emperor is not the mere whim of the ruler, but those things he has soberly undertaken to establish as law with the counsel of his magistrates. The pleasure of the prince therefore includes the pleasure of his magistrates. Kantorowicz calls this a “constitutionalist qualification” of the word placuit. Pollock and Maitland, however, in an annoyed footnote in their History claim that Bracton “wilfully distorts” the maxim to bolster his anti-absolutist views.
But Bracton is not without precedent in his interpretation of the Lex Regia. Justinian himself, in Codex 1.14.8, reaffirms the rule of Theodosius and Valentinian that the Senate and officials of the palace should consider novel matters and report their consensus to him in consistory, where he will ratify and promulgate the consensus as law. Considering that shortly he will claim the sole authority to legislate, one might read this in one of two ways. But in any event, there is no real conflict between Bracton’s “constitutionalist qualification” of placuit and Justinian’s view, since Justinian himself seems to agree that the pleasure of the emperor ought to reflect the pleasure of the senators and magistrates of the empire.
Kantorowicz notes that Bracton likewise was supported by civilians and canonists closer to his own time than Justinian. Kantorowicz cites Gerhoh of Reichersberg, who argued that the Donation of Constantine had to be made in consultation with the consuls and other authorities of the empire because the alienation of public property required such consultation (MGH LdL III.152.17). Kantorowicz also cites the decretals explaining what the bishop can and cannot do without consulting his chapter. (X. lib. 3, tit. 10–11). In other words, it was not a radical assertion in Bracton’s day that rulers had to consult their magistrates (or other nobles) before establishing law, even if their pleasure had the force of law. Indeed, civilian and canonist alike would have found nothing remotely radical about the assertion.
This result ought not to be too surprising. In a 1999 article in the University of Chicago Law Review, Richard Helmholz demonstrated brilliantly that Magna Carta was influenced greatly by the ius commune—that is, the Roman and canon law as it stood in 1215. It is unnecessary here to replicate Helmholz’s argument in all its detail. However, the effect of the argument on Crean and Fimister’s argument is clear: even Magna Carta, the symbol of the English common law—its restraint on tyrants and its protection of liberty—is founded, in large part, upon Roman and canon law. The influence of the ius commune in England would continue for centuries: as I have demonstrated elsewhere, the English writ de heretico comburendo is ultimately founded upon Frederick II’s imperial legislation against heretics, made part of the ius commune when Pope Boniface VIII approved them in a decretal.
Undoubtedly Crean and Fimister do not have this tradition in mind when they talk about the Lex Regia and popular sovereignty. They might have in mind a caricature of Frederick II’s Liber Augustalis, which cite the Lex Regia in an important chapter (1.31) establishing the supremacy of the king over the law. Certainly writers have tried to present Frederick’s laws for Sicily as establishing a model autocracy, not least among them Ernst Kantorowicz. However, David Abulafia makes the case that the Liber Augustalis was written (probably hurriedly) to address problems specific to Sicily. And the novelty of Frederick’s jurisprudence may be overstated: Abulafia argues that Frederick reestablished Norman law in a Norman style. Even if the Liber Augustalis does establish a precursor of the total state, the imperial legislation, such as the Mainzer Reichslandfrieden of 1235, presents a very different picture of the emperor’s power.
Likewise, Alfonso X of Castile and León, a Hohenstaufen descendant through his mother, prepared his Siete Partidas between 1256 and 1265. His second Partida mentions the Lex Regia as the basis for the emperor’s authority (Partida 2.1.2). However, at no point can it be said that Alfonso sets up the basis for popular sovereignty on the road to totalitarianism. For one thing, Alfonso holds that the Romans transferred their sovereignty to the emperor to protect the common good; however, the emperor’s authority was strictly circumscribed by law and tradition (Partida 2.1.2; 2.1.8). Moreover, Alfonso agrees with the medieval consensus that the emperor ought to act having taken counsel with learned men (Partida 2.1.3; 2.1.4).
However, Alfonso introduces an interesting wrinkle: while the emperor derives his authority from the Lex Regia, the king derives his authority from God and the natural law (Partida 2.1.5; 2.1.7). As a consequence of this different source of authority, the king’s powers are broader than the emperor’s powers (Partida 2.1.8). Alfonso also describes the ways that a king may accede to the royal office: by inheritance, by election in default of heirs de jure, by marriage to the heiress of a kingdom, and by appointment by the pope or emperor where they have the right to appoint a king (Partida 2.1.9). The emperor is always elected (Partida 2.1.2). Most important of all is Alfonso’s recognition that the king is prior to the emperor (Partida 2.1.7). In other words, despite accepting the general medieval narrative about the Lex Regia, Alfonso carefully limits it to its context: the Roman emperor.
Crean and Fimister do not set out to write a history of the civil law or even of the reception of the Lex Regia. However, their sweeping assertion about the totalitarian, positivistic civil law hinges in an important way on the Lex Regia. They do not explain their assertion, nor is it clear from the foregoing that the explanation would be straightforward. Bracton argued that the Lex Regia in fact restrained the will of the ruler, especially by defining his pleasure carefully. In this he was joined by civilians and canonists. Likewise, Alfonso’s Partidas present a careful, nuanced view of the Lex Regia, limiting it to its original context of the Roman emperor. Even then, however, the emperor’s power is carefully limited by law and tradition, along with the counsel of his nobles. It is possible that they have in mind Frederick II’s Liber Augustalis, which cites the Lex Regia in the process of affirming Frederick’s power over the law. However, David Abulafia makes it clear that Frederick’s legislation for Sicily was limited to Sicily and the problems of Sicily.
This is the danger of a grand narrative, like the opposition of the common law to the civil law or the opposition of England, cradle of liberty, to the despotic continent. No doubt there are examples of the despotism they decry and no doubt these despots relied upon popular sovereignty. But it is simply not tenable to indict the entire civil-law tradition in the manner they do. For one thing, Bracton was deeply influenced by civil and canon law in his influential summary of the common law. For another thing, the civil law tradition was not necessarily as totalitarian as they suggest, as Justinian himself and Alfonso X demonstrate. Certainly Crean and Fimister are entitled to have an agenda and to advance that agenda, but they do themselves few favors by combining their pronouncements with a sort of casual attitude to their sources.
Crean and Fimister’s Integralism is an important book: it is the first book-length treatment of traditional Catholic politics, political economy, and jurisprudence since the revival of integralism at The Josias and other places. No doubt it has, by virtue of its format and the erudition of its authors, a certain authority. However, it is impossible to say it is definitive. Indeed, as noted above, it is best taken as a brief for a particular position, with all the merits and demerits of a brief. Certainly there are those who will disagree with Crean and Fimister—rightly so, as demonstrated above—and it will be welcome if they, too, submit their interventions. Ultimately, Integralism is the beginning of the debate, not the end.
Pat Smith
