Jurisdiction and Law in the Ancien Régime

Posted on Oct 30, 2024 in Philosophy and ethics

ITEM 7. THE JUDICIAL FUNCTION OF POLITICAL POWER

7.1. CORPORATE SOCIETY

For the culture developed by jurists and theologians, order is an original fact. It is assumed that there is an order of natural and social things, and the cosmos responds to a divine plan. The idea that the world is naturally ordered is also expressed in Greek philosophy. For Aristotle, everything that exists is a kind of inscription that marks the place it deserves in the world order. That’s what Thomas Aquinas calls love (affection of all things for the order). The inscription for man is that he tends to live in society (affective societatis). On this basis, the whole concept of social order is built. It should be noted that the idea of order implies:

  • Inequality-hierarchy (stratified society)
  • Part-whole (corporate society)

Stratified society is a legally inegalitarian start of legal inequality. Thomas Aquinas said the highest expression of order is inequality. Thus, earthly society is understood as an ordered whole in response to the diversity and hierarchy of social functions.

Consequences:

  • There is a management unit. All parts of society are moving towards the same end.
  • Each part has a hierarchical function. The elements comprising society depend on the features of the estate society. The idea of a corporate society can be enclosed in a formula that determines the order: there are certain functions that society needs to perform. Different social roles are assigned to other groups and this gives them a certain status. Society consists not of individuals but is broken down into groups of individuals carrying the same function and accordingly gifted with the same status. Therefore, an estate is the group of individuals who have the same status.

From this, it follows that the individual is simply a carrier of the estate. What is inconceivable is the individual equivalent to a person. The rights are set up not as individual rights, but as social rights or powers. The estates are all social situations relevant to the order and depend on family, religion, territory, sex, etc. There are different estates depending on the position one holds in different corporations. In response to the kingdom (the most important corporation in political terms), the estates depend on the position you occupy in the kingdom.

  • Oratore – pray.
  • Bellator – war.
  • Laboratores – work. These are the most important because they embody the body of the kingdom. These three estates, together with the head (king), embody the kingdom. They are defined by tradition. Each estate has a different legal status. The status of the clergy and nobles is quite different. They are privileged estates regarding laboratores. This concept is maintained throughout the Old Regime until the advent of the revolution, although there is a gradual dissolution of estate-function.

It is a very rigid society, but it is not immobile. From another point of view, complementary to the previous one, corporate society is the time for unity-part-whole because, in this society, the part cannot be understood without the whole. From the point of view of corporate society, society is divided into the groups that the individual is part of. The family is the corporation par excellence. It can be defined as a supra-individual entity that has its own purposes and is self-organized to achieve them. To designate these groups, we use the term body. The meaning of this designation is that the arrangement of the different parts in the body is not casual, anarchic, and egalitarian; it is necessary, orderly, and uneven. The underlying idea is that of necessity, inequality, and cooperation between the different parts that make up the set.

The bodies or corporations are:

  • Family: the nuclear body. It is a model for other corporations.
  • Territorial-based Corporations: city, kingdom, empire.
  • Corporations with a professional or personal basis: unions, universities, consulates. Each of these corporations is vested with legal power. This figure is theoretically and dogmatically constructed by the figure of the fictitious or legal person. The estate depends on the position you occupy in the corporation.

Conclusion to society:

The individual does not exist by himself; we do not see people’s rights, we see people. The individual exists only as a derivative from the organismic estates and corporate representation. The subject of law is defined by its social position. Each individual shall have the regime resulting from the confluence of its status in regard to the circles of coexistence in which life unfolds. The subject is visible only through the order. Since individuals are not the same, they cannot be conceived as individuals.

7.2. IURISDICTIO

The judicial conception of political power refers to the essential role of political power, which is to declare the law. We assume that the law precedes political power, and this is subject to the law, and therefore serves a constitutional right. Political power is for the maintenance of civil order. The space in which we find ourselves is Europe in the late Middle Ages, where political power is fragmented. Consequently, there is a multiplicity of political powers. Relationships are based on a set of individuals who obey another. Lawyers look for a concept in the Digest of Justinian to define these power relations and choose the term iurisdictio. Irnerio shaped the notion of iurisdictio, and it is as valid as Bartolo of Sassoferrato. To this culture, iurisdictio is defined as potestas legitima de iure publico dicendi introdotta ad iuris statuendae cum necesítate aequitatis. Translated, it means iurisdictio is the legitimate authority of public law introduced to meet the need of saying law and enacting equity.

  • Iurisdictio is potestas, i.e., who has power and who is subject. The judge is subject to the same trial. It is not any power, but public power. They want to exclude the relationships included in the term iurisdictio from the power relationships that exist within the family. They are subject to the rules of the economy and not to the rules of iurisdictio itself.
  • It is a legitimate power, excluding arbitrariness, which is not legally admissible.
  • This power is enough to say the right, that is, administering justice: applying the law to resolve a conflict.
  • Statue aequitas is equivalent to legislate, that is, create law, establish rules governing coexistence.

The notion of iurisdictio raises several problems:

  • What is the origin of iurisdictio? In principle, it is in the corporation, which is the field of exercise. Lawyers construct a theory of the origin within the corporation. Primarily, they used the doctrine of consensus universorum (all the individuals within the corporation). The consensus, as conceived by the jurists of the early medieval centuries, is that in each corporation, there is a constellation of political power centers. This means political power moved to the head of the corporation (in the kingdom by the king, at the university by the dean, etc.), and it used a word defined as translatio in the Roman Empire. From the fifteenth century, without abandoning this model, it coexists with others who exalt the figure of the king, that power comes directly from God, and the king distributes it in his role as head of the body.
  • Internal divisions (classification) of the iurisdictio: Holder and exercise of iurisdictio. Grade from the iurisdictio. They are built according to the amount of power that is recognized. When making a classification of iurisdictio, it not only serves the area on which it is exercised but also the set of actions that can be done or not.

It is a gradation from the high side to the low. The simple rule is that which is done for public activity (proceedings ex officio). The mixed rule is held by the court to serve a private utility, while the simplex iurisdictio is the power that is exercised at the request of anyone who asks. Grades specify the actions that the holder of the same can perform. Within the simple rule, those with the highest degree can make general laws and have imperium maius. Whoever can impose death sentences has imperium magnum; whoever may impose penalties of deportation has imperium medium; whoever may impose fines has the minimum imperium. In the mixed rule, for example, it provides the knowledge of maius lawsuits application. The simplex iurisdictio knows the maximum allowed lawsuits relating to personal status, etc. There are 18 degrees, and the king is the holder of the imperium merum maximun. The lawyers built with this classification of the acts of power, and it serves to classify the task of magistrates. The legislative power (adjudicating equity) deals with a pre-existing and unavailable order (not available to any human body) that ultimately encompasses all that exists and refers to God. The notion of law is against this background material or substantive. The law is defined by the material of which it is made. The substance always refers to religion. The cause of the law is the appropriate order. The shape is very important, and therefore the formal distinctions between different types of provisions are irrelevant. In this context, the matter is aequitas, i.e., justice. This order is made of precepts of justice because it derives from God. With that aequitas designating a prior reality that comes from God, the legislator becomes unfit to govern coexistence. In this context arises the notion of positive right and justice. God makes the law, and men with the law make the law. It means moving from the rough aequitas to the constituent aequitas. Therefore, the legislature is the architect in a process of transformation, and the instrument used is interpretation, so that regulation is to declare a law that already exists.

Consequences of the legal order:

  • It is very difficult to establish a hierarchy between different provisions. The conflict rules are variable.
  • The decisive factor is the cause of law, to bring order.
  • The law exists while it is still a cause (matter). The laws are fair and, in principle, remain.

Consequences of the concept of Iurisdictio:

  • Within this framework, men will have a very limited space. The order is given by the world and implies the existence of political power. The role of government is the good of the whole. There are inherent limits to political power.
  • It is inconceivable the constituent power, to constitute the social and political order. Any act of power is basically an act of declaration of an order that is assumed to exist and is intended to guarantee.
  • The main task of political power is to do justice, maintain order. It is by setting standards or resolving conflicts that may arise through these rules. The governance model is a judicial model of government: the management of political power is judicial. The trial is the ordinary technical decision. The governing bodies are basically courts. The case law as knowing is the most relevant for legal transactions. The result of this model is a model that is extremely specific guarantor that nobody is obliged to tolerate anything against their will if previously not been given the opportunity to defend their right to government-separation via contenciosa. Justice is contrary to the principles of this order.

The figure of the princeps (King) conforms in principle to this scheme. It is the highest degree of iurisdictio and conducts the most relevant acts. To say that the King is on top of that, we speak of summa authority. The prince’s position is characterized by being dissolved in the law. This extraordinary power can only be used in some cases for good cause, so that the extraordinary nature of this authority is the means used, not the end sought (maintain order). Ultimately, the role of the king is to maintain order and not destroy it. With the anthropomorphic metaphor, the role of the king is to maintain and coordinate the rest of the body, the whole. The concept of sovereignty can never be concentrated political power in this order, but ultimate power.

7.3. OWN RIGHTS AND COMMON LAW

Common law spread without eliminating the traditional rights in the various territories of Christianity. These inherent rights are:

  • The rights that have been formed in the early medieval period (workshop of praxis).
  • In each area, the assertion of a royal legislative power is giving rise to a whole new set of provisions.

In this way, from the late Middle Ages, the legal order will result from the integration of common law and traditional real rights law. The difference between each area is the role given to each of these rights. The resulting legal orders have five characteristics that can preach the order of the Ancien Régime:

  • Preeminence of religion. The right is part of a broader regulatory complex that is religiously based. There are differences between the inner (consciousness, judged by God) and external forum (regulated by law). They are often in conflict. The solutions are haphazard.
  • It is a traditional order. It complies with all the elements that tradition has deposited on the ground in law.
  • It is a pluralist order. Within the same political space, the complex is composed of different standards that are equally valid. Each of these rules complex consists of an internal plural configuration. All must be integrated and maintained simultaneously.
  • It is a probabilistic order. It is based on the simultaneous maintenance of all valid rules by choosing one or the other, taking into account the case. They do not believe in the existence of absolute truths but truths or knowledge whose relationship is likely in response to the case and its circumstances.
  • It is an order of precedent. Only the lawyers are trained. They define themselves as priests of the religion of law. They are masters of the task of organizing a consensus among different views to make justified decisions (communis opinio).

Characteristics of the jurists:

Ways for the order of God through lawyers:
  • Revelation through the sacred books.
  • Scrutinizing the order: the world is a mirror of the order.
  • Observation of things.

Justice is defined as the science of right and wrong based on the observation of the divine and human, for which the lawyers must have the following capabilities:

  • Note – study.
  • Memory.
  • Practical application of the learned – prudence.
  • Fear of God – adherence to order.