The Jurists of the Fifteenth Century

The interest in legal analysis and speculation created by the study of Roman law was especially marked during the conciliar controversy of the fifteenth century. Roman law was familiar with the concept of a corporation, and its principles were applied in explaining collective ecclesiastical and political organizations, such as the church, the church council, the state, and the free city.

Political theorists who desired to attack the-concentration of authority in the hands of a single individual in church or state were attracted by the idea of a body corporate, recognized as a person in the legal sense. This idea served for a time as an intermediate stage between the single individual and the whole body of individuals. Those who saw the necessity of reform, yet shrank from the idea of vesting power in the whole body of citizens or the whole congregation of believers, found the theory of corporation especially useful.

Supporters of the view that the authority of rulers was delegated to them by the people and that the ultimate powers of the church resided in the general body of believers found legal arguments useful to support the new conception of the whole people as a legal personality. The church council, acting as the corporate representative of the church, was exhaustively analyzed according to the principles of Roman jurisprudence.

Questions of the relation of the pope to the council, the method of summoning the council, and the mode of its procedure as to quorum and voting were all worked out by applying to it the Roman legal concepts of the corporation. The method of electing emperor and pope was also discussed in accordance with the principles of Roman corporation law.

While the concept of the corporation was applied especially to the smaller groups, such as the church synods and councils, the various estates in the social order, the universities, and the free cities and communes in Italy, Germany, and France, it nevertheless prepared the way for the larger concept of the legal personality of the church and the state as a whole. Medieval theory believed that unity in church and state could be accomplished only by subordinating the members of each to a common imperial ruler.

The theory of the corporation laid the basis for the idea of the legal entity of the whole body of individuals, and made possible the later concept of sovereignty residing in the people of the state, and not in the monarch. Medieval theory was thoroughly familiar with the conception of the state as an organism.

To this the idea of corporate personality was now added; and with the aid of the conciliar theory of representation a clear distinction was made between state and government, between the ultimate source of authority and the organs to which the authority was delegated.

The doctrine of the corporate personality of various organizations within the state, first put forward during this period, has contributed in recent years to the pluralistic theory of sovereignty, to the doctrine of guild socialism, and to the emphasis laid upon function as the proper basis of political organization.

This tendency has come down partly through the study of church institutions and history; partly through the growing importance and political activity of economic groups, such as labor unions, industrial combinations, and the like; and partly through juristic doctrines of the social nature of law and its relation to the state.

The jurists of the fifteenth century also made a clear distinction between jurisdiction and ownership, maintaining the rights of the owner of private property against the holder of political authority. This doctrine struck a blow at the feudal theory of the king as the ultimate owner of the territory of the state and tended to dissociate the ideas of landholding and governing authority. It also tended to shift the ultimate source of sovereign power from the monarch to the people of the state as a whole.

During the entire period the Roman doctrine of natural law furnished the starting point of all legal theory. The principles of the law of nature were considered superior to the commands of any ruler or to any human enactment. Whatever contradicted the eternal principles of natural law was void and could bind no one.

Beside the law of nature (jus naturale), implanted by God in natural reason, was placed the divine law (jus divinum) communicated by God to man in a supernatural way, and the law of nations (jus gentium), consisting of the rules which all nations recognized as flowing from the law of nature. Medieval writers based the state upon moral or natural necessity. Its aim was the promotion of welfare, and for this purpose the realization of the natural law was the appropriate means.

From the time of Aquinas it was held that the welfare of the whole was more important than that of any part; and this utilitarian doctrine of general welfare was one of the main arguments of the conciliar party in demanding representation of the entire church. This theory also attacked the idea that church and state were perfect and unchangeable institutions, and justified changes and reforms when necessity demanded them.

The Renaissance study of the classics revived interest in the democracy of the Greek cities and in the Roman law of contract, as well as of corporations. Both attacked the medieval idea of authority vested in a single head, and laid emphasis upon the importance of the many.

While the application of the popular sovereignty ideas inherent in these concept, was checked by the victory of the pope over the councils and by the theory of divine right revived by the Protestant Reformation, the ideas reappeared in the latter part of the sixteenth century and finally worked themselves out in the revolutions of the seventeenth and eighteenth centuries.

Modern democracy owes much to the theological controversies of the fifteenth century. And the Renaissance jurists, while they temporarily strengthened the monarchs, introduced concepts that ultimately supported democratic principles.

SAKHRI Mohamed
SAKHRI Mohamed

I hold a bachelor's degree in political science and international relations as well as a Master's degree in international security studies, alongside a passion for web development. During my studies, I gained a strong understanding of key political concepts, theories in international relations, security and strategic studies, as well as the tools and research methods used in these fields.

Articles: 14307

Leave a Reply

Your email address will not be published. Required fields are marked *