Roman law was centralized law, but with the fall of Rome beginning at the time of St. Augustine (AD 354-430), Western Europe witnessed the disintegration of all things centralized, unlike the Eastern half of the Roman Empire, Byzantium, which persisted for yet another millennium, until the fall of Constantinople in 1453. Spurred on by invasions of Germanic and other tribes, what was considered ‘local’ came to be the focus of society in Western Europe.[1] Any impetus to centralization that persisted could only be found in the Papacy, which encouraged a collective sense of belonging in what was known for a period as “Christendom.”[2]
The invasions
of Vikings and Magyars in the ninth and tenth centuries reinforced a particular
need to seek out local strong men as a means of protection, thereby
highlighting the importance of the lord and vassal relationship, which is key
to understanding “feudalism” as it developed in the Middle Ages. The lord offered protection and the vassal
his oath of loyalty, or fealty, in what can be regarded as a reciprocal – but
asymmetrical - relationship. There subsequently
developed a sense of vast interconnectedness in feudal society, based on the
trinity of so-called cooperation between ‘those who prayed’ (priests), ‘those who worked’
(peasants on the land), and ‘those who fought’ (lords and knights). This interconnection is best expressed by the
immortal phrase of Arthur Lovejoy as “the great chain of being.”[3]
It is
worth noting that the English word “king” originally derives from the Germanic
“cyning’ – a term etymologically close to “kin”.[4] In other words, feudal society was one based
on “kinship”, and the king – in an idealized term – was viewed as chief of his
“family”. But most importantly, the king
– not unlike the vassal – saw himself as under the law by virtue of
being bound by oath, a term which also has Germanic origins.[5]
***
Here
are two historical studies, which demonstrate the consistent pattern of the
king regarded as figure who operates under oath, under the law, and under God:
This
ideal of royalty found expression in the various ceremonies of anointing,
enthronement and coronation which spread to all the western kingdoms during the
seventh and eighth centuries. These
ceremonies, controlled and performed by the Church hierarchy, incorporated the
secular Germanic idea that the king’s chief duty was to be guardian of the
community’s law; in all the rituals the king promised to perform his duty
faithfully. But the important thing was
that his promise was made to the Church as well as to the secular community of
his subjects and was confirmed by a religious oath.[6]
As
early as the end of the eight or the beginning of the ninth century, Smaragde,
Abbé de Saint Mihiel, defines the
king as the representative of God, entrusted with the duty of “facere
justiitiam et judicium” [to do justice and judgment]. By a daring etymology, he explains the word rex [as derived from Latin] by the duty of governing rightly: “Rex a recte regendo
vocatur” [A king is called by ruling rightly].
When he comes to give the detailed duties of the king, he prohibits him
from committing any abuse of his power and obliges him to render justice
according to the law and without any consideration of the personalities of the
parties.
One
century later, Hincmar, Archbishop of Rheims, also very clearly placed the king
under the law. He expressly writes that
nobody, king included, may disregard the law.
The principle applies not only to the king “as a man,” but to the king
“as a king.” According to the view that
he takes of the positive law, nothing can be changed or added to the customs
without the consent of the people: “Lex consensus populi et constitutione regis
fit” [The law is made by the consent of the people and by the constitution of
the king]. We will see this principle repeated by the Parlements and by the
Etats Généraux of the people of France as
long as France was a kingdom. The
principle was not challenged by the kings themselves. Pepin, son of Charlemagne, will say,
“Inasmuch as we shall observe law towards everybody, we wish everybody to
observe it toward us.” Charles the Bold
will swear, “I shall keep law and justice”; and Louis the Stammerer, “I shall
keep the customs and the laws of this nation.”
In modern terminology, it might be said that the power of the king was
more executive or regulatory in nature than legislative, and this will remain a
basic principle of the French monarchy, even under Louis XIV. And even when the king exercises his
regulatory power, he cannot do it alone.
Up to the thirteenth century, he cannot make any decision without the
advice and the
consent of the “plaids”, gatherings of important lords, bishops and high
civil servants, which will later become the Conseil du Roi. Of course, the king is not the beneficiary of
power, but the trustee of it: Hincmar always writes in terms of duty for the
king, according to the divine law and to the customs.[7]
***
As was
made clear in the above selections, even the remarkable rule of Louis XIV -
with its absolutist pretensions - made him far from being a despot. In 1667 he decreed: “Let it not be said that
the sovereign is not subjected to the laws of the State; the contrary
proposition is a truth of natural law; what brings perfect felicity to a
kingdom is the fact that the king is obeyed by his subjects and that he himself
obeys the law.”[8]
The famous phrase “L’Etat, c’est moi” is also apocryphal. It is likely misattributed to Louis XIV, as its
first known appearance was in the mid-eighteenth century by an unimportant
writer.[9]
Beginning
in 1789 with George Washington - including Donald Trump in 2017 – every US
President has pronounced the following words: “I do solemnly swear that I will
faithfully execute the office of the president of the United States, and will
to the best of my ability, preserve, protect, and defend the Constitution of
the United States.”[10]
***
There is a reason why people serving in
our government take an oath to the Constitution. As our founding fathers recognized, democracy
is fragile. People in positions of
public trust are duty-bound to defend it – to step forward when action is
required.
In our country, we don’t swear an oath to
an individual, or a political party. We
take an oath to defend the United States Constitution. And our oath must mean something. Tonight, I say this to my Republican
colleagues who are defending the indefensible: There will come a day when
Donald Trump is gone, but your dishonor will remain.[11]
[1]
John B. Morrall, Political Thought in Medieval Times (London:
Hutchinson, 1958), p. 27. Reprint
[2] Ibid.,
p. 57.
[3]
See Arthur O. Lovejoy, The Great Chain of Being: A Study of the History of
an Idea (London: Transaction Publishers, 2009). Originally published in 1936.
[4]
Morrall, Political Thought in Medieval Times, p. 13.
[5]
The concept of “the rule of law,” which places all of government under the
law, first originates with the Code of Hammurabi, which has yet to be
discussed here in this blog space.
[6]
Morrall, Political Thought in Medieval Times, p. 24.
[7]
Andre Tunc, “The Royal Will and the Rule of Law,” in Arthur E. Sutherland, ed.,
Government Under the Law (Cambridge: Harvard University Press, 1956), p.
404. Translations from Latin into
English by Google Translate.
[8] Ibid.,
p. 408.
[9] Ibid.,
p. 403.
[10]
See especially Brian Z. Tamanaha, “Functions of the Rule of Law,” in Jens Meierhenrich and
Martin Loughlin, eds., The Cambridge Companion to the Rule of Law
(Cambridge: Cambridge University Press, 2021), p. 226. For the text of the Oath go to Article II,
Section 1, of the US Constitution.
[11]
Liz Cheney, Oath and Honor: A Memoir and a Warning (New York: Little,
Brown and Co., 2023), pp. 279, 280.
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