On Politics: A History of Political Thought Book One: Herodotus to Machiavelli Book Two: Hobbes to the Present
What do we need to know about Bartolus of Sassoferrato? Most of us have never heard of him, but in his time—he was born in 1313 in the Marche region of Italy—Bartolus was famous as a political thinker.
Though he roamed between Italian cities like Bologna, Pisa, and Perugia, Bartolus confronted a world still haunted by the idea—in fact, two ideas—of universal empire: the empire of Western Christendom, under the God-given authority of the pope, and the Holy Roman Empire, under the authority of someone who was supposedly the successor of Constantine and Justinian. Relations between the two ideas were complicated beyond belief. The papacy had temporal authority over certain territories in the Empire and its authority extended to spiritual matters in the imperial jurisdiction as well. The Empire was, in theory at least, every bit as committed to upholding the Catholic faith and appointing bishops as the papacy was. In matters where their authority overlapped, no one could quite agree who was subordinate to whom: Was the temporal authority of the pope (such as it was) a donation from the emperor or was the emperor’s authority legitimized by the church?
Sometimes these questions would flare up in deadly conflict. But often they seemed irrelevant to daily life. Christ had told his followers to render unto Caesar the things that were Caesar’s, as though a concession to empire were enough to account for all political obligations. But in the real world, most people’s obligations were owed to self-governing cities or to the rulers of independent kingdoms like England and France. And this posed a problem. We might be comfortable reading “Render unto Caesar the things that are Caesar’s” as though it included state taxes and municipal regulations. But it was by no means obvious to Bartolus or his contemporaries that “Render unto Caesar” could be read in this way. The whole edifice of Roman law, which was the basis of jurisprudence everywhere, was erected on the assumption that only the emperor had lawmaking power. So there was an enormous gap between jurisprudence and political reality. It was as though little Californian communities fifty years hence in the postapocalyptic world of Cormac McCarthy or Justin Cronin were to approach the issue of lawmaking on the basis of Article I of the US Constitution.
The distinctive thing about Bartolus was that he was sometimes willing to adapt the theory of Roman law to fourteenth-century reality rather than insisting that fourteenth-century reality always had to be redescribed to fit traditional jurisprudence. It was important, he said, to stop regarding France as a province of a notional Roman Empire or Florence as just one of its municipalities. Bartolus didn’t want to deny the Holy Roman Emperor’s title, but its holder (when there was a holder) was usually to be found in Germany and he had only a passing interest in the Italian city-states or the kingdoms of the West.
So, if we accepted that law could be made only by the emperor, then, said…
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