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Book Review
Antonio Padoa-Schioppa, ed., Legislation and Justice,
Oxford: Clarendon Press; New York: Oxford University Press, 1997. Pp.
xix + 432. $95.00 (ISBN 0-19-820546-5).
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This volume, edited by Antonio Padoa-Schioppa, is part of a research
program led by Wim Blockmans and Jean-Philippe Genet and dedicated
to the origin of the modern state in Europe. Each of the volumes
in this series deals with different aspects of the extremely complex
and multifaceted process to which historiography continues to dedicate
so much attention: from the role of war in the building of the modern
state to the development of the economic system, from the functions
of the élites to the legitimization of power, from the representation
of the individual to the images of the community and of resistance. |
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It is within this framework
that we find the research coordinated by Padoa-Schioppa. It takes
on the themes of legislation and jurisdiction as a point of reference
and poses the question of how the condere leges and the dicere
ius interact with the process of the building of the modern
state in various parts of Europe. |
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One hardly needs to point out the complexity
of the problem, deriving from extraordinarily diverse elements that
should be briefly mentioned. First, the very definition of the historiographic
problem in question is by no means simple. Of course, we know the
destination point of the process, in short, the nineteenth century
(or at most, eighteenth century) European national state, and from
this point we proceed backwards in search of its genesis. However
it is not self-evident that the destination point (the modern
national state) is homogeneous to the point of departure, that the
history of the modern state is the history of a "thing" that has
various phases but is as such identifiable and recognizable in the
course of its centuries-old development. We could hypothesize that
its discontinuity is more apparent than its continuity, so much
so that one could doubt whether the term "state" itself is the most
suitable terminological reference. |
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A second element of its complexity
is due to the diversity of the political processes that unfolded
in the various parts of Europe: they differ in their rhythms of
development and the institutional solutions that mature within them,
thus making the existence of a general model definable as a "modern
state" somewhat problematic and suggesting, rather, the idea of
diverse processes of the centralization of power that hardly lean
toward unity. |
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A third problem, linked to those already
mentioned, is due to the variety of operative factors in the building
of the modern state—a process that almost coincides with the
whole political and social dynamic, with the entire practice and
culture of an epoch. |
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Confronted with the difficulty
of this problem, this volume treats it with an awareness of the
task that it is taking on and of the inevitable difficulties that
it entails. The book deals with the state, legislation, and jurisdiction
knowing full well (and demonstrating it with every contribution
to the volume) that the very terms "legislation" and jurisdiction"
(and indeed "state" itself) are the expression of a relatively recent
legal doctrine and would lead to false historiographic conclusions
if not contextually redefined within the concrete research done
"in the field." |
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The essays refer to different politico-geographical
areas: a choice that is highly recommendable, given the variety
of the experiences and the contexts. The areas chosen are, respectively,
France (which is the subject of the works by A. Gouron, "Royal Ordinances
in Medieval France," 58-69, by A. Rigaudière, "Issues at Stake
in the Development of the State: Devising and Drafting the Law in
Fourteenth-Century France," 73-101, by B. Durand, "Royal Power and
Its Legal Instruments in France, 1500-1800," 291-312); the German
Empire and the example of the principality of Hesse (which are,
respectively, the subjects of the works by D. Willoweit, "The Holy
Roman Empire as a Legal System," 123-29 and by K. Nehlson-von Stryk,
"The Centralization of Justice and the Formation of a Judicial Hierarchy
in the Early Modern State: The Principality of Hesse," 131-57);
England (studied by P. Brand, "The Formation of the English Legal
System, 1150-1400," 103-21, and by C. Holmes, "The Legal Instruments
of Power and the State in Early Modern England," 269-89); the Hapsburg
monarchy (described by W. Ogris, "The Hapsburg Monarchy in the Eighteenth
Century: The Birth of the Modern Centralized State, 313-34); the
Spanish monarchy (to which S. De Dios dedicates his work, "The Operation
of Royal Grace in Castile, 1250-1530, and the Origins of the Council
of the Chamber," 159-73); the Netherlands (studied by H. de Schepper
and J. M. Cauchies, "Legal Tools of the Public Power in the Netherlands,
1200-1600," 229-68); Poland (studied by W. Uruszczak, "Constitutional
Devices Implementing State Power in Poland, 1300-1700," 175-96);
Denmark (presented by K. Horby, "Church and State in Medieval and
Early Modern Denmark: The Legal Issue," 197-209); Sweden (studied
by T. H. Lindkvist, "Law and the Making of the State in Medieval
Sweden: Kingship and Communities," 211-28); Italy (more exactly,
Italian medieval cities, studied by M. Sbriccoli, "Legislation,
Justice and Political Power in Italian Cities, 1200-1400," 37-55,
while a work dedicated specifically to the constitution of the Italian
"regional states" is absent). |
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These essays reflect
the great variety of the diverse experiences studied and refer to
well-defined politico-cultural areas. They share the characteristic
of concentrating primarily on the earliest phases of the process
of the centralization of government that we identify with the building
of the "modern state," with the exception of Ogris's essay, dedicated
to the Hapsburg monarchy, which deals with the phase of its "illuminated
absolutism." |
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The only exception to the criterion of "spatial"
distribution of the contributions, yet nonetheless indispensable,
is that of two essays dedicated to the law of the Church and to
its influence on the genesis of modern state: A. Padoa-Schioppa's
"Hierarchy and Jurisdiction: Models in Medieval Canon Law," 1-15;
and U. Wolter's "The Officium in Medieval Ecclesiastical Law as
a Prototype of Modern Administration," 18-36. |
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The comparative intentions of the
research, which constitute one of its undeniable merits, are made
clear simply by listing the contributions to the volume. The need
to broaden the geographical confines of the research as much as
possible emerges from the very nature of the phenomenon being studied:
the volume does not aim to draw a generalized model from the diverse
local experiences. Rather, by placing contributions dedicated to
the various parts of Europe one beside the other, it offers the
reader the possibility of finding the analogies and differences
between the diverse experiences. |
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There is also a very useful and effective
conclusion by the editor that reviews the contributions offering
not a model, but a synoptic picture of the most general and recurring
outlines of the local experiences, thus contributing greatly to
the "readability" of the volume and to the "synthetic" comprehension
of the phenomenon being studied. |
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Due to the impossibility of summarizing
and analytically commenting on the singular contributions, I will
mention only some of the most general themes that reading the essays
has brought forth. |
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A first impression has to do with
the general theme (legislation and jurisdiction) that gives the
title to this volume and that acts as a common line for most of
the essays: the impression of the radical distance that separates
the "name" (our name) from the "thing." Those activities
(legislation and jurisdiction), which to us seem such clear and
precise articulations of that political organization that we call
the "modern" state, change their meaning completely if placed in
the context of the earliest political modernity: as Gouron observes,
in this context they do not presuppose a politico-constitutional
order but, on the contrary, react as forces, symbols, and instruments
that lead to its construction. The constitution of the modern state
is a field of contrasting tensions from which diverse and temporary
equilibriums emerge—a field of tensions and conflicts that
often suggest that the very practices of legem condere and
the dicere ius are at stake. |
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The second impression has
to do with the specific importance attributed respectively to administering
justice and to legislation in the development of sovereign power.
Taking the diversity of the contexts into consideration, one has
the sensation that for a long time the main pawn is the ius dicere
rather than legislation. Certainly one must make a distinction between
the levels of reality to which we are referring. As for the legitimization
of power, the ancient symbol of the king-judge progressively becomes
stripped by a different image, which tends to identify sovereignty
with the full and "absolute" legislative power. As for the real
government of subjects, the moment of administering justice
probably has a much longer period of prevalence. If it is true that
the control over subjects does not resort only to the administration
of justice, it is also true that it finds in it perhaps its most
incisive instrument. |
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Of course, we are not dealing with
clear and precise outlines, due also to the variety of the forms
that justice takes on and to the variety of manifestations of the
legislative phenomenon that Rigaudière translates into the
broader "normative power," bringing to light the complexity of its
drafting and the variety of elements that lead to the formalization
of the norm. However, it seems highly probable (the essays of Brand,
Holmes, and Nehlson-von Stryk support it with evidence) that the
jurisdictional moment is the decisive push toward the centralization
of power. |
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The conflict over jurisdictions is
therefore understandably the main battleground for a power that
is slowly and with difficulty shifting from the periphery to the
center. (But again, the images of "periphery" and "center" are problematic
if applied to a process in which the center has not been defined
beforehand, but, on the contrary, precisely the definition of the
center is the major stake.) |
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The Church undoubtedly plays a relevant
role in the construction (symbolic as well as juridical) of the
center, in the representation and orchestration of a centered and
pervasive process of power, offering suggestions and proposing itself
as an insurmountable model. Appropriately, therefore, two essays
are dedicated to the direct and indirect influence that the Church
had on the constitution of a central apparatus of command. |
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It is the idea itself of sovereignty
that finds one of the most rigorous expressions in the theory of
plenitudo potestatis within a Medieval culture reluctant,
moreover, to emphasize the "absolute" character of power; it is
the idea (and the practical organization) of a hierarchy of offices
that, precociously operative in the canonist tradition, remains
a model to be laboriously approximated by secular power. |
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In the development of an apparatus
of powers and functions gravitating around a "center," the role
of a jurist is certainly significant. It emerges, however, very
early in the Medieval city, in particular the city of the "communal
civilization": a political community that in the history of the
modern state poses notable problems, in some ways appearing as its
own foreshadowing, a sort of "small state" destined for future expansion,
and in another way appearing as something both more and less than
the future "modern state," in other words as something that is decidedly
different from it. |
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This does not mean that outlines
destined to be retrieved and transposed in the framework of the
future "state" are not established in the city microcosm (and brought
evocatively to light by Sbriccoli's essay), from the importance
of peace to the role of utilitas, to the government of subjects,
therein including the political body's preoccupation for its members'
"welfare." |
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The contribution of the jurist to
the complex life of the community is important, as he offers the
city a series of professionally qualified services, which range
from involvement in the administration to the more specific technical
functions of the legem condere and of the ius dicere.
And if we leave the world of the medieval city and move on to the
building of the modern state, the role of the jurist loses none
of its significance. He participates as an advisor to the prince,
as a "rationalizer" of the sovereign's authoritative intervention,
as a key figure in the administration of justice, the progressive
bureaucratization of which often proceeds at the same pace as the
growing professionalism of the judges. |
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The jurist therefore comes
to act as one of the major forces in the development of a sovereignty
for which the ius dicere and the legem condere take
on increasing importance as marks of a power that seems (at least
symbolically) absolute. At this point the question of the relationship
between the sovereign and the order emerges, a metaphysical and
ethical-juridical order that traditionally appears as a foundation
as well as a limit to sovereign power and makes the idea of a tyrannical
exercise in power possible. Within this framework, the moment of
arbitrary intervention of the sovereign takes on a certain relevance
and the essay that Salustiano de Dios devotes to this problem closes
with a question that in some way can be referred to the entire political
process that is the subject of the book: that is, whether the outlines
that arise when focusing on that form of the organization of power
that we call "absolute state" apply only to that, or whether they
can be applied, with all of the extensions, adjustments, and transpositions
of the case, to the state tout court. |
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Pietro Costa
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University of Florence
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