Part I: National Sovereignty and European Union

Modern Europe stands on the threshold of defining her future identity as it will exist for a long time to come. The shape of the European Community will determine not only the future course of European but also of world history. It would be no exaggeration to state that the decisions made by the leaders of Europe will be the most important, most decisive ones made since the end of the Second World War. If Europe decides to create a unified, federal geopolitical unit of her constituent nations, she will constitute the most powerful “nation” the world has ever seen.

I place the word “nation” in quotation marks because such an attribution to this proposed super-state would be very questionable. Europe constitutes a community of nations, not a single nation. The question which should be at the focus of the current debate concerning unification is: “Why are there such nations anyway?” That Europe is composed of sovereign nation-states constitutes probably the most salient characteristic of her public history for the past 500 years. Considering the prevalence of war, declared and undeclared, armed or unarmed (e.g. economic), which has characterized that history and culminated in the bloodiest wars in history, World Wars I and II, one might very well wonder if Europe ought continue under this same framework of sovereign nation-states. One of the chief justifications for a federal Europe is the elimination of just this system, based as it is in the principle of “nationalism.”

Why are there nations indeed? An answer, rooted in Biblical theology, is given in Jim Jordan’s essay elsewhere in this issue of Symbiotica. For the purposes of this essay, with respect to Europe and modern times, this question further divides into a series of intimately related ones. The first is, where did the nations of Europe come from? Another is, What purpose did they originally serve? Finally, the question remains, How have they deviated from that purpose, and would restoration of that purpose also restore the legitimacy of their existence? It is only through answers to these questions that the other questions facing Europe, the questions of community vs. federal unification, can be appropriately dealt with.

The Origins of Europe

Europe owes its origins, inasmuch as they might be attributed to one person, to the genius and capability of Charlemagne.[1] Through the creation of a single geopolitical empire from the diverse tribes inhabiting the European continent he determined the shape of Western Europe. Nothwithstanding the element of conquest involved in its formation, the basis of that union lay less in force than in a common religion: that of Western, Latin Christendom, with Rome as spiritual leader. Charlemagne was anointed by the Pope as “Emperor of Rome” on Christmas Day, 800 A.D. Although he eschewed the title, preferring instead to be considered the emperor of the Latin half of Christendom (and thus on a par with the emperor of Greek Byzantium) this linkage brought with it the revivification of Roman civilization. But for all that it was no repetition of classical Rome which Charlemagne managed to revive, but a new cultural, political, and religious entity, composed of the tribes he had succeeded in subduing or otherwise bringing into his Frankish kingdom.

The Carolingian Renaissance

Charlemagne was a lover of Roman Christian culture and learning. By his sponsorship a cultural renewal was sparked, the so-called Carolingian Renaissance, under the leadership of the English monk Alcuin (whom Charlemagne had invited over from England especially for this purpose). Here the primacy of the Latin tradition was continued, preeminently through the study of the works of the great bishop of Hippo, Augustine. Charlemagne himself, in spite of a level of personal morality which would belie the fact (he had many mistresses and bore many illegitimate children), was wholly taken up with Augustine, especially his City of God. That book inspired Charlemagne as none other in his desire to extend the rule of Christ on earth through his own imperial efforts. The vision of Augustine inspired the establishment and further cultural development of the Carolingian empire: Augustinianism therefore lies at the very heart of European civilization.

The Rebirth of Rome

For all its vast size and (relatively speaking) splendor, the Carolingian empire never constituted much more than an ideal. After Charlemagne’s death the empire was divided among successive generations of pretenders to the imperial title. Germany and France came to be ruled by different persons. But yet the title of Emperor, and the formal claim of his universal rule, remained intact. For instance, the kings of France (Louis) and Germany (Charles), at the Treaty of Verdun (843 A.D.), acknowledged the imperial claims of their brother Lothar. Soon the Emperor began to claim universal rule of the entire earth as the vicar of Christ. Thus began the durable tradition of Empire in Europe with such a vast separation between claims and practice, between de jure and de facto situation.

Kingship at this time manifested a sacral and even Christological character. The Emperor, who by the year 1000 was styling himself as the new Caesar and Emperor of Rome, maintained this sacral typology more so than any other. He exercised priestly powers and constituted in himself the bond between heaven and earth. He also was the sovereign, the lawmaker and judge of all creatures. He himself was a king and a priest, claiming to be “after the order of Melchizedek,” being the living representative of Christ on earth, and endowed with His authority.[2]

Armed with this self-conception the Western emperors began to make connections with their counterparts in Byzantium to the east. This was a strategy pursued by the Ottos, Otto I (the Great, d. 973), Otto II (d. 983), and Otto III (d. 1002), to gain imperial substance for their claims to universal dominion. Otto II married the Byzantine princess Theophano, and Otto III was educated by her; through this linkage Byzantine imperial-court customs and culture were imported into the Western imperial court, stamping its life and character. Byzantine emperor-centered ecclesiastical practice and liturgy also became established, as trappings of imperial authority, bolstering imperial claims to absolute authority in both spiritual and temporal matters. Perhaps most significant in this connection, at this time the Emperors began to draw upon Byzantine law, and in particular the law books of Justinian, to establish the source and the scope of imperial authority.[3]

The Papal Revolution

Therefore the program of Pope Gregory VII, the so-called “Papal Revolution” (otherwise known as the Investiture Crisis or the Gregorian Reform) carried out between the years 1054-1122, constituted a revolutionary break because it was precisely this totalitarian character of the Emperor which was denied. A separation of the sacred and the secular, of the spiritual and the natural – something which had always figured in the Augustinian theology – now for the first time became something more than theory: it was established, solidified, in the political structure. The Emperor was denied his position as the vicar of Christ, in favor of the Pope. He was stripped of divine status and liturgical focus; the church which he heretofore had headed was removed from his purview; the prelates which he was accustomed to put into office were hereby taken out of his hands by the drastic measures of the Gregorian Reform. The Emperor henceforth was relegated to the status of temporal administrator of justice, the executor of laws pertaining to the mundane affairs of secular life – laws which themselves had to be stamped with the approval of the now independent, assertive, seemingly omnipresent Church of Rome.

From Empire to Community of Nations

The assertion of her jurisdiction over the realm of the sacred, and her opposition to sacral empire, meant that the Church established the conditions through which the separate nations of Europe could obtain and maintain an independent existence in their own right. As medieval historian Joseph Strayer has noted, the Papal Revolution had several consequences precipitous for the rise of territorial states:

  1. The denial of imperial supremacy came the recognition of territorial kings and princes as independent sovereigns. “Each kingdom or principality had to be treated as a separate entity; the foundations for a multi-state system had been laid.”
  2. The definition and promulgation of law codes based upon the distinction of the sacred and the secular, because the kings were considered administrators of secular justice. “The Gregorian reformers might believe that the Church defined what justice was, but even they admitted that in normal conditions it was the duty of secular rulers to see that justice was dispensed to the people . . . . But if they were to enforce justice, then codes of law must be developed and judicial institutions improved.”
  3. This strong emphasis on law meant that the developing European nations would become “law-states,” whose reason for being would be found in maintaining an atmosphere of legal responsibility. “The state was based on law and existed to enforce law . . . . In no other political system was law so important; in no other society were lawyers to play such an important role.”
  4. More indirectly, the church also emphasized the importance of an educated “civil service” to carry out policies; university education, standard for clerics, became important also for laymen, and secular government modelled itself on church hierarchy and organization.[4]

The Papal Revolution was nothing if not a revolution in law,[5] and the Church pioneered the development of a new law-order which encompassed the entirety of Western Christendom, establishing the basis for the further growth of that civilization. The growth of internal constitutions within the various nations, of bodies of rights and liberties, was mediated by the Church; concurrently, the mediation of relationships between the nations was taken on by the Church, particularly through the elaboration of canon law pertaining to international relations.

The Legal Framework

The growth of legal science, necessary to the development of a system of law capable of meeting the challenge of the new situation, was the fruit of the Papal Revolution. In this new legal science the main text used was the Corpus Juris Civilis of the Roman emperor Justinian, of which the Digest, or compilation of Roman lawyers’ legal opinions, was the basic text for study in the developing curriculum. But the nature of the influence of the Justinian law books must not be misunderstood. This corpus was used as a guide for systematizing, for categorizing, and for orientation in the contemporary legal situation; but its content was not simply taken over and applied. “What was important about the study of Roman law was that it furnished a set of categories into which new ideas could be fitted and a vocabulary by which they could be described.”[6] It was the canon law which, Berman claims, was the model law code for the West: “the first modern western legal system.”[7]

The history of the way in which the Roman law of Justinian has been interpreted in the West is a crucially important one. In fact, by taking note of how the Roman law was being interpreted at any particular time one can can determine what kind of constitutional and political regime was being promoted, whether more or less constitutional, more or less absolutist. The kind of interpretation given to the Roman law is a touchstone for tracing the course of constitutional development.

During and immediately after the Papal Revolution the Justinian law was interpreted by the imperial party in as strictly a literal sense as possible, because such an interpretation lent strong support to the imperial claims of absolute authority. However, the yawning gap which existed between the kind of society envisaged in Justinian’s law and that of contemporary feudal Europe was too great for such an effort to make very much headway. The Roman law was subjected to an intense effort of reinterpretation by various schools: the so-called “glossators” (so named because they “glossed” or attached a running commentary to the given Roman law), the canon lawyers of the Papal party, and, a bit later on, the “post-Glossators” or Bartolists, beginning with the famed fourteenth-century jurist Bartolus of Saxoferrato, who reinterpreted the law in the light of republican liberties as were possessed and defended by the prospering Italian cities.[8]

The upshot of this effort at reinterpretation was to create a Roman law which stood at loggerheads with the original version. And this reinterpretation was embodied within a larger developing system of law and constitutional order expressing, and giving substance and stability to, the new reality of a European community of nations, itself forged through the cooperation of Papacy and territorial state over against Empire.

Jurisdiction and Sovereignty

One extremely important innovation involved the reinterpretation of the Roman law concepts of imperium and jurisdictio. In the original conception, jurisdictio referred to the authority of a judge to render judgment; imperium, to the basis for that authority, which lay in the Emperor. Thus, jurisdictio was a creature of imperium and wholly dependent upon imperium as the basis for its own authority. Imperium, in turn, was held solely by the Emperor. He might delegate imperium to lesser magistrates, but their imperium was entirely dependent upon his. The result is that all exercise of legitimate authority in society is derived from the Emperor, and entirely dependent upon him for its justification.

One of the great Roman lawyers of the Middle Ages, Azo (1150-1230), reversed this understanding of authority. Helped by the fact that nowhere in Justinian’s texts were these concepts of imperium and jurisdictio explicitly spelled out (such an understanding was clear, though, from the various relevant texts when looked upon as a whole), Azo proceeded to classify them in a manner exactly opposite to that described above. He made imperium the creature of jurisdictio; furthermore, he interpreted jurisdictio to be held by lesser magistrates as well as the supreme magistrate (he yet acknowledged the Emperor to be de jure the supreme magistrate), and that each level of jurisdictio was independent from the level above it in the sense that it possessed a legitimacy in its own right. “Involved in Azo’s analysis is a recognition that the jurisdiction and dominion – the sovereignty, as a later generation would say – of kings, princes, heads of municipal governments, and other magistrates are not derived from the jurisdiction and dominion of the emperor.”[9]

Thus Azo provided a definition of political sovereignty expressive of the new realities of post-Papal Revolution Europe, capturing in this conception the decentralization of political authority so characteristic of the medieval constitution. Two other characteristics of this concept of political sovereignty bear emphasizing. First, the emphasis in sovereignty was placed upon the authority to adjudicate, to pass judgment in terms of a received law. It is not conceived as essentially the authority to legislate, as was the case both in imperial Rome and later on became so, in modern times. The law was considered received – given, not made – and the sovereign was a judge who administered justice in terms of the received law. Secondly, the ultimate basis of sovereignty was considered to lay, not with the ruler, but with the people. Sovereignty was popular, possessed by the people as a whole: “the corpus, the universitas, the communitas.”[10]

Thus the new-found concept of national sovereignty was based upon a constitutional understanding of sovereignty whose ultimate basis lay in the people as a whole, and in each people, each nation, particularly. Thus the nations of Europe were, originally, constitutional monarchies. This is a historical factor of the first importance.

The Establishment of Free Trade

Not only in politics did the Roman law receive a thorough revision, but also in economics. Admittedly there was not much explicit economic thought contained in the Justinian corpus, but given the fact that imperial Rome was the scene of a fairly complex trading and commercial network, many laws were developed which addressed the problems that did arise. The Roman solutions formed the basis for the future development of commercial law.[11]

The concept of the just price was of Roman law provenance. It came out of the idea of laesio enormis (“great injury”). Laesio enormis was done to the seller, whenever he stood to receive less than half of the just price [justum pretium] for the offered good or service; it meant that he could refuse to fulfill the terms of the contract until he was assured of full payment by the buyer. The justum pretium was, however, never really defined by the Roman law, but it could be inferred from various texts, which generally stated that whatever the buyer and seller agreed to was the just price. In fact, texts were rather explicit in stating it was totally up to the individuals concerned, and that one could sell as dear and buy as cheap as one could get away with.[12]

The medieval commentators, while adopting the term justum pretium, were unsatisfied with its given definition. But, as John Gilchrist in his admirable The Church and Economic Activity in the Middle Ages remarks, “In adopting the term, did they reject the civilists’ sense and apply it to the `cost of production plus . . . a moderate profit’ notion as asserted by Troeltsch and others? They did not.”[13] Rather, they adopted as the standard for any particular transaction the price which could be fetched on the open market. They thus adopted a subjective theory of value, which has only made a comeback in modern times with the rise of the Austrian school of economics.[14]

 This conception of the just price frees the medieval Church from many of the charges brought against it. Economic growth was not impeded by bad teaching or price regulation. Utility and need were the fundamental determinants of price. The system did not protect the inefficient merchant or crafstman: he sold at a loss, or not at all. The efficient producer was not penalized. Nor did membership of a guild `ensure the individual craftsman a non-competitive local market’. There was always foreign competition, substitute goods and materials, and, in the last resort, consumer resistance.[15]

The market-oriented approach evident in this concept of the just price was part of the larger movement to provide a legal-juridical basis to the transformations underway in post-Papal Revolution society. A shift in attitudes brought a positive evaluation of the role played by trade and commerce in society. Engagement in trade had traditionally been considered something useless, and profiting from it, sinful, since the trader was not adding anything to what he sold but was simply buying in order to sell again (this, the “no one loves a middleman” mentality). But now the positive benefits of trade came to be understood, and commentators began extolling those benefits. This was especially important in the light of the developing international order of nations which made up the European corpus Christianum; for it was at the international level that this bias toward the desirability for free trade relationships was developed. Here is the way Gilles le Muisit, canon of Tournai, expressed the new ideal (at the beginning of the fourteenth century):

For itself no country can provide;
For that merchants travel far and wide;
Their work and toil feeds the nation
So refrain from baseless fulmination.
Merchants cross the seas and back
To bring each nation what it lacks
No good merchant would reap blame
But love, honor, and a just good name.
They contribute to the love of nations
Thus their wealth is cause for jubilations
A good trader’s ruin is cause for pity
May their souls see the light of the Heavenly City.[16]

In fact, at the level of the municipalities the guilds were in continual conflict with the Church (and often with municipal authorities where the guilds did not control those authorities) over the doctrine of freedom of trade. The guilds continually pressed for monopoly privileges, and the Church never ceased opposing their monopolist agenda. De Roover notes that “In theory, the guilds were supposed to prevent unfair practices, to supervise quality, to make apprenticeship rules, etc., but not to put monopolistic restrictions on trade. Humanity being what it is, the practice was often different.”[17] Monopolies, according to the Church, acted against the principles of justice by causing things to be sold for more than they were worth; monopolies were exploitative and therefore violated principles of charity and brotherly love; monopolies were injurious to the common good because they increased prices and also withheld needed goods and created artificial scarcity.[18]

In combatting this form of obstruction the Church was establishing a framework of necessary and practicable relationships between the multiple political jurisdictions. “The general tenor of scholastic pricing policy then, was for the establishment of just terms of trade between town and country, and the achievement of a free flow of goods uninhibited by private monopolies and by speculative activity of a type which was designed to bring about the very circumstances which the speculator intended to exploit for his own gain.”[19] Intervention in market operations for the sake of the common good was never denied by the canonists. They did conceive that in emergencies the ruler should intervene to ensure the safety and welfare of subjects and citizens. But this was the exception and not the rule. The market was considered, under normal conditions, to provide the just and fair means through which goods and services ought be distributed.

The Modern Law of Nations

In the development of these positions, a common law cutting across the multiple political jurisdictions was being developed; as these laws crystallized into a general body of law, there came a transformation in the original Roman law concept of international law itself. The umbrella-term under which these changes could be summarized is the jus gentium, the law of nations. The Roman imperial concept of international law thereby received fundamental reorientation, being revamped to embrace the political and the economic innovations being achieved in the new Europe.

The jus gentium had been originally developed by the Romans to deal with the nations they had conquered. Since they had to administer justice within these nations, they had recourse to the customary laws of each particular nation, and additionally developed a set of general principles from out of their own law to deal with relationships between the nations. This general law was also called the ius commune, or the common law of the realm. It was, of course, enforced by the central Roman authority, eventually the Caesars.

Imperial Law and Natural Law

An important outgrowth of this development was the idea of natural law. The Stoics, the philosophers of Rome, developed from the idea of the jus gentium the idea of a natural law which embraced all mankind in absolute equality. They extrapolated from the factual situation, of a Roman empire which embraced all the world of which they cared, and postulated a kosmos in which the like situation obtained: a law embracing all, making all equal, enforced by an absolute sovereign. Thus the Stoic idea of natural law was simply the abstracted and universalist version of the very real situation obtaining in imperial Rome.

Now in the developing civilization of Western Europe this idea of a universal jus gentium expressive of a cosmic natural law exerted a powerful attraction. But its foundation, as originally conceived, was removed: with the Augustinian-inspired Papal Revolution the absolute sovereignty of the Emperor was denied. What happened was that the Emperor remained a theoretical component of the jus gentium – his position de jure, in law, as the absolute sovereign of the world was yet acknowledged – but the actual situation was one analogous to that of today’s parliamentary democracies, in which a king or queen is officially sovereign but actually wields zero authority.

As with the Emperor, so with the law. As natural law became more and more to be equated with the will of the personal yet transcendent God of Christianity, the jus gentium became understood not as the expression of the will of a human sovereign, whose imperium embraced mankind as a whole, but as a universal law expressive of the will of God for all nations, all peoples, and above the decrees of a human sovereign. It transcended and determined the laws of all human polities, and also ruled the relationships between those polities. In short, it relativized human sovereignty.

Two elements of the new understanding of jus gentium are of fundamental importance. Firstly, the legitimacy of human empire is denied. No nation has the right to conquer and rule over another nation. The right of self-determination is an undeniable one. Sovereignty in the political sense must remain in the hands of nations as such. Secondly, the rights accruing to sovereignty are limited ones. Nations have no right to act as a law unto themselves. They are not free to make treaties and alliances with other nations for any purpose they like, for instance. What they can and cannot do as sovereign nations is strictly limited.

Essentially, as already stated, sovereignty simply defines who the proper authorities are, not what they are permitted to do. Laws of superior origin determine that. This understanding is especially important in determining rights of trade and communication between the nations. As originally conceived in the Christian concept of international law and international relations, these were fundamental rights which political sovereigns could not infringe.

These basic principles would be developed into a coherent synthesis in the sixteenth and seventeenth centuries. That synthesis, that legacy, is today largely a forgotten one. We turn now to examine its concrete content as it found expression in the work of the Catholic Dominican Francisco de Vitoria, and the Protestant Calvinist Johannes Althusius.

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[1]Cf. Walter Ullmann, The Carolingian Renaissance and the Idea of Kingship (London: Methuen & Co Ltd, 1969), passim.

[2]See for example Kantorowicz’s description: The King’s Two Bodies: A Study in Medieval Political Theology (Princeton, NJ: Princeton University Press, 1957), ch. III: “Christ-Centered Kingship.”

[3]“It would not be many decades before the full opulence of Justinian’s Code was to be perceived in all its magnitude.”  Walter Ullmann, A History of Political Thought: The Middle Ages (Harmondsworth, Middlesex, England: Penguin Books, 1965), p. 97.

[4]Joseph R. Strayer, On the Medieval Origins of the Modern State (Princeton, New Jersey: Princeton University Press, 1970), pp. 22ff.

[5]As Berman has emphasized: Harold Berman, Law and Revolution: the Formation of the Western Legal Tradition (Cambridge, Mass.: Harvard University Press, 1983).

[6]Strayer, Medieval Origins, p. 25.

[7]As the subtitle of ch. 5 proclaims: Law and Revolution, p. 199.  For the relative influence of Roman law in the development of medieval legal science, see particularly pp. 120ff. and 204f.

[8]Skinner gives an excellent summary of the Bartolist project: Quentin Skinner, The Foundations of Modern Political Thought: Volume One: The Renaissance (Cambridge et al: Cambridge University Press, 1978), pp. 9ff.

[9]Berman, Law and Revolution, p. 291.

[10]For this example of Azo’s interpretation of imperium and jurisdictio, cf. Berman, Law and Revolution, pp. 289-292.

[11]Barry Gordon, Economic Analysis before Adam Smith: Hesiod to Lessius (London: The Macmillan Press Ltd, 1975), pp. 122f.

[12]Kenneth Sheldon Cahn, Roman and Frankish Origins of the Just Price of Medieval Roman and Canon Law (unpublished Ph. D. Thesis, The City University of New York, 1973), pp. 36f.

[13](London: Macmillan & Co Ltd, 1969), p. 59.

[14]The definitive statement concerning the medieval doctrine of the just price is John W. Baldwin, The Medieval Theories of the Just Price: Romanists, Canonists and Theologians in the Twelfth and Thirteenth Centuries (Transactions Amer. Philos. Soc. NS XLIX no. 4: Philadelphia, 1959).  For a contemporary exposition of the subjective theory of value, see Gary North, The Dominion Covenant: Genesis (Tyler, TX: Institute for Christian Economics, 1982), ch. 4.

[15]Gilchrist, Church and Economic Activity, p. 60; the quote is from E.E. Hirshler, “Medieval Economic Competition,” Journal of Economic History XIV (1954), p. 58.

[16]Quoted in Jacques Le Goff, Time, Work, & Culture in the Middle Ages [trans. Arthur Goldhammer] (Chicago, IL: University of Chicago Press, 1980), p. 66.

[17]Raymond de Roover, “Monopoly Theory Prior to Adam Smith,” in Julius Kirshner (ed.), Business, Banking, and Economic Thought in Late Medieval and Early Modern Europe: Selected Studies of Raymond de Roover (Chicago and London: University of Chicago Press, 1974), p. 283 n. 1.

[18]De Roover, “Monopoly Theory,” pp. 278-279.

[19]Gordon, Economic Analysis, p. 220.