Medieval Law And The Foundations Of The State

The state is the most powerful and contested of political ideas, loved for its promise of order but hated for its threat of coercion. In this broad-ranging new study, Alan Harding challenges the orthodoxy that there was no state in the Middle Ages, arguing instead that it was precisely then that the concept acquired its force. He explores how the word 'state' was used by medieval rulers and their ministers and connects the growth of the idea of the state with the development of systems for the administration of justice and the enforcement of peace. He shows how these systems provided new models for government from the centre, successfully in France and England but less so in Germany. The courts and legislation of French and English kings are described establishing public order, defining rights to property and liberty, and structuring commonwealths by 'estates'. In the final chapters the author reveals how the concept of the state was taken up by political commentators in the wars of the later Middle Ages and the Reformation Period, and how the law-based 'state of the king and the kingdom' was transformed into the politically dynamic 'modern state'.

In this broad-ranging new study, Alan Harding challenges the orthodoxy that there was no state in the Middle Ages, arguing instead that it was precisely then that the concept acquired its force.

In The Laws of Late Medieval Italy Mario Ascheri examines the features of the Italian legal world and explains why it should be regarded as a foundation for the future European continental system. The deep feuds among the Empire, the Churches unified by Roman papacy and the flourishing cities gave rise to very new legal ideas with the strong cooperation of the universities, beginning with that of Bologna. The teaching of Roman law and of the new papal laws, which quickly spread all over Europe, built up a professional group of lawyers and notaries which shaped the new, 'modern', public institutions, including efficient courts (like the Inquisition). Politically divided, Italy was partly unified by the legal system, so-called (Continental) common law (ius commune), which became a pattern for all of Europe onwards. Early modern Europe had for long time to work with it, and parts of it are still alive as a common cultural heritage behind a new European law system.

A Classic Study of Early Constitutional Law. First published in 1914, this is one of the most important studies of early constitutional law. Kern observes that discussions of the state in the ninth, eleventh and thirteenth centuries invariably asked whose rights were paramount. Were they those of the ruler or the people? Kern locates the origins of this debate, which has continued to the twentieth century, in church doctrine and the history of the early German states. He demonstrates that the interaction of "these two sets of influences in conflict and alliance prepared the ground for a new outlook in the relations between the ruler and the ruled, and laid the foundations both of absolutist and of constitutional theory" (4). "[A] pioneering and classic study." --Norman F. Cantor, Inventing the Middle Ages, 106. Fritz Kern [1884-1950] was a professor, journalist and state official. From 1914 to 1918 he worked for the Foreign Ministry and the General Staff in Berlin. One of the leading medieval historians of his time, his works include Die Anfänge der Französischen Ausdehnungspolitik bis zum Jahr 1308 (1910) and Recht und Verfassung im Mittelalter (1919).

This excellent book is a translation of a very small portion of Dr. Gierke’s “ Deutsches Genossenschaftsrecht, " being the section entitled “ Die Publizistischen Lehren des Mittelalters. ” Its ten chapters treat of the following questions : The evolution of political theory under the diverse influences of ancient philosophy and law, medieval theology, local custom; Macrocosm and microcosm, i.e., the relation of the whole of society to its parts and vice versa from the medieval viewpoint; unity in Church and State, wherein are discussed the warring positions of parties in both, evolved by the length of the contest between the papacy and the empire; the idea of organization, i.e., of society as an organism; the idea of monarchy, its derivation from God, its consequent relations with the plenitudo potestatis of the papacy; the idea of popular sovereignty, its conflicts and combinations with the ruler's sovereignty, first in the temporal sphere, second, analogous developments of the idea as applied to the government of the Church, somewhat painfully brought out by the conciliar movement; the idea of representation; the idea of personality, i.e., of justice or legal personality applied to the Church and State or to minor corporations; the relation of the state to the law, natural and positive; the beginnings of the modern state, i.e., those elements in medieval doctrine that led up to the modern idea of the state. One half of the book is devoted to notes that elucidate the text of the cited authorities, a long list of which, both ancient and modern, is given. The mere enumeration of the titles of the chapters and the fact that the translation has been undertaken by so eminent a legal historian as Mr. Maitland are a warrant that the work is important, even for those who are not disposed to accept Dr. Gierke's views on faith. English - speaking readers in general must find it interesting, accustomed as they are to look on medieval thought as mere idle speculation of the logicians; as if political theories did not then, as now, agitate men's minds and lay the foundations for much of those political blessings that we now enjoy, or think we do. To a close observer of the development of government in the Catholic Church some portions will be, not merely interesting, but absorbing. They may even be instructive, though at the sacrifice of some preconceptions.

Originally published in 1914, Kingship and Law in the Middle Ages by Fritz Kern is one of the most important studies of early constitutional law. In this book Kern highlights the well-established traditions of the medieval state-its foundation on justice; the supremacy of the law; and the cooperation, with reciprocal rights and duties, of the monarch and folk in maintaining the law-and undertakes a thorough examination of the relevant legal theory underlying kingship in the early Middle Ages. How, he asks, did medieval canonists and jurists view the relationship between the rights of the monarch and those of the populace? Kern shows the origins of this debate to have stemmed from both church doctrine and the politics of early German states, which then set the ground for constitutional theory and modern liberalism. Kingship and Law in the Middle Ages remains an exceptionally informative study of the origins and development of constitutional government. "The present volume makes available in English one of the classical expositions of early medieval kingship."-FRANKLIN L. BAUMER, American Historical Review "No lawyer and no constitutional historian should overlook this volume. There is no question whatever as to the general importance of Kern's work."-B. WILKINSON, University of Toronto Law Journal

This volume brings together eleven articles by a distinguished medieval scholar. The major emphasis is on legal thought that resulted from the revival of Roman law at Bologna and on the influence this thought had on medieval "constitutionalism." Includes such important studies as “A Romano-Canonical Maxim, Quod Omnes Tangit, in Bracton,” and “Status Regis and Lestat du Roi in the Statute of York.” Originally published in 1964. The Princeton Legacy Library uses the latest print-on-demand technology to again make available previously out-of-print books from the distinguished backlist of Princeton University Press. These editions preserve the original texts of these important books while presenting them in durable paperback and hardcover editions. The goal of the Princeton Legacy Library is to vastly increase access to the rich scholarly heritage found in the thousands of books published by Princeton University Press since its founding in 1905.

Foundations of Public Law offers an account of the formation of the discipline of public law with a view to identifying its essential character, explaining its particular modes of operation, and specifying its unique task. Building on the framework first outlined in The Idea of Public Law (OUP, 2003), the book conceives public law broadly as a type of law that comes into existence as a consequence of the secularization, rationalization and positivization of the medieval idea of fundamental law. Formed as a result of the changes that give birth to the modern state, public law establishes the authority and legitimacy of modern governmental ordering. Public law today is a universal phenomenon, but its origins are European. Part I of the book examines the conditions of its formation, showing how much the concept borrowed from the refined debates of medieval jurists. Part II then examines the nature of public law. Drawing on a line of juristic inquiry that developed from the late sixteenth to the early nineteenth centuries-extending from Bodin, Althusius, Lipsius, Grotius, Hobbes, Spinoza, Locke and Pufendorf to the later works of Montesquieu, Rousseau, Kant, Fichte, Smith and Hegel-it presents an account of public law as a special type of political reason. The remaining three Parts unpack the core elements of this concept: state, constitution, and government. By taking this broad approach to the subject, Professor Loughlin shows how, rather than being viewed as a limitation on power, law is better conceived as a means by which public power is generated. And by explaining the way that these core elements of state, constitution, and government were shaped respectively by the technological, bourgeois, and disciplinary revolutions of the sixteenth century through to the nineteenth century, he reveals a concept of public law of considerable ambiguity, complexity and resilience.