Law,Principle, and the Theologico-Political History of Sovereignty

Abstract

This article takes it cue from the debate between Carl Schmitt and Erik Peterson regarding the possibility of political theology within Christianity, and in response, offers a conceptual-historical portrait of sovereignty and its juridical dimensions. Beginning with the introduction of Roman law into the medieval Church, the article traces the logic of “legal principle” as the basis of sovereign decision and how the form of legal distinctions adopted into canon law translate the Romanitas of law into the theory of papal sovereignty. By the Romanitas of law, that is to say the principle of sovereignty in law. The article then seeks to describe the conceptual translations of Roman politics and Stoic metaphysics into theological form and the logic of this translation into medieval natural law. The article concludes by evaluating how the civic theology of Rome is conceptually inherited by the politics and legal framework of sovereignty and returns to Peterson’s critique of Schmitt, arguing that political theology can be understood as a dynamic where politics is theologized, assuming that in the history of religion, theology and politics are never fully distinct to begin with.     

Leibniz,Locke, and the Early Modern Controversy over Legal Maxims

This article investigates the context of a side line in Leibniz's critique of Locke on maxims. In an enigmatic and little-explored remark, Leibniz objects that Locke has overlooked some legal maxims that fulfil the function of ‘constituting the law’. I propose to read this remark against the background of the divergence between conceptions of legal maxims in the common law tradition and conceptions of legal maxims in the Roman law tradition. In a few remarks, Locke seems to echo the common law emphasis on customs and conventions expressed by legal maxims. According to such a conception, reason would mainly fulfil the function of subsuming particular norms under more general conventional norms. By contrast, Leibniz uses the Roman law idea that some ‘rules of law’ express demands of natural reason and, thereby, express principles constitutive of natural law. This is why he proposes to reform vague and confused ‘brocards’ used by jurists in order to identify sound maxims that provide a natural-law foundation for legal institutions.     

Imperial Intervention in the Disputed Roman Episcopal Election of 418/419

Evidence for the conflict between two rival candidates for the bishopric of Rome following the death of Zosimus at the end of 418 comes from a group of twenty‐five letters, most of which are official letters to and from Emperor Honorius (the rest being from other imperial officials and the emperor's sister), all but one of which are found in the Collectio Avellana. Interestingly, we have nothing preserved from the two episcopal claimants about this matter. The group of letters chronicle imperial concern for the preservation of public order. Do we have here an example of imperial interference in episcopal elections in Rome? In this article a careful examination of the letters reveals that Honorius was concerned only that the Roman church's procedures had been followed (Collectio Avellana, Ep. 15), which should determine who was lawful bishop. Sociological Conflict Theory is employed to investigate the nature of the evidence to address issues of the nature of the dispute and its participants, what values were contested, how it escalated, and how it was resolved. Such an approach makes clear that our evidence focuses on the role of the emperor and only incidentally tells us of the thinking and strategy of the two candidates. The final decision was made not on the merits of the candidates and the legality of one of the two elections, but upon Eulalius' violation of the conditions imposed upon the two rivals while the dispute was to be settled. Despite the emperor's concern only to facilitate the church settling this conflict itself, in the end it was an imperial measure that determined the outcome of the disputed election.     

Date,Rituals and Socio‐Cultural Identity in the North‐Western Roman Provinces

This article explores issues of socio‐cultural identity in the north‐western Roman provinces, using all the available archaeobotanical evidence of date (Phoenix dactylifera L.). This fruit does not conform to the general social distribution pattern of other Roman exotic food plant imports in this area, but instead indicates a strong ceremonial connection. Through an in‐depth contextual approach the role of date in both domestic and ceremonial sites is investigated to reach beyond the simple ‘date‐Roman‐ritual’ association. The results suggest strong temporal, spatial and contextual patterning and an overall rare occurrence and selective use of the fruit in certain rituals and mystic cults. Date may have been employed not necessarily as a food, and was probably an affordable luxury for some in their ritual pursuits. As such, date can now be regarded as part of specific ceremonial expressions rather than a standard ingredient of a normative ceremonial or ‘Roman’ identity.     

“I Was Following Orders”: An Ancient Greek Archetype of Modern War Crime Legislation

Abstract

This article discusses Lysias’ Against Eratosthenes as an ancient Athenian instance of the superior orders plea, a line of defence made notorious during the Nuremberg trials, which in turn became the cornerstone of modern war crime legislation. Whereas the pre-Nuremberg jurisdiction largely embraced the principle of superior responsibility, whereby a subordinate executing criminal orders was not to be held liable for them, the trials of the Nazi war criminals brought about a complete reversal of this doctrine. While remaining faithful to the spirit of the Nuremberg jurisdiction, the subsequent legislative acts (which dealt, among other things, with the atrocities committed in the former Yugoslavia) sought to further elaborate its underlying principle of absolute liability, in order to precisely determine the question of guilt and innocence. I argue that despite the close relationship between modern legal systems and Roman law, which fully embraced the doctrine of superior responsibility, it is in the juridical thought of ancient Athens that one finds the archetype of contemporary war crime legislation.     

China,Natural Resources,Sovereignty and International Law

Abstract

This article explores China’s attitudes towards the regulation of key natural resources by international law, domestically and at the trans-boundary and international levels. It considers the impact of international law on China’s own practices, and the contribution of China towards shaping international law. The article suggests that popular conceptions of a relatively isolated, sovereign absolutist China do not accord with contemporary legal realities, including in its dealings with natural resources. While China’s construction of strong sovereignty shapes its attitudes towards legal regulation, practice also suggests that China adopts a nuanced approach which includes legal compromise, and a commitment to multilateral regulation or bilateral diplomatic settlement of issues previously within the competence of national governments. China is often an active and constructive participant in contemporary law-making, even if – like all countries – it also seeks to instrumentally use international law.     

Translating relics: Victricius of Rouen and fourth‐century debate

This article uses a little‐known sermon by Victricius, bishop of Rouen, as an approach to the fourth‐century debate on the translation of relics. In the last third of the fourth century, the cult of martyrs and their relics was promoted by Damasus of Rome, Paulinus of Nola and Ambrose of Milan, but remained controversial in the western churches. Roman law forbade the disturbance of dead bodies, especially where magic was suspected. Christians as well as non‐Christians were repelled by the veneration of bone, bloodstains and dust, and by the extreme asceticism that was often associated with relic‐cult. The sermon Victricius preached, welcoming to Rouen a gift of relics from Ambrose, is here interpreted as an attempt at cultural translation. Victricius deploys a late‐antique education in rhetoric and philosophy to make relic‐cult and asceticism acceptable. Like many others, he uses the adventus, the ceremonial reception of a visiting emperor or his deputy by local aristocracy and officials, as an analogy for the reception of relics by ascetics and clergy. Exceptionally, he equates corporeal relics with the presence of God; but his unique theology of relics was lost to view.     

Orientation of the Romanesque churches in the region of Val d’Aran,Spain (11th–13th centuries)

This study examines an ensemble of Romanesque churches in the region of Val d’Aran in the Spanish Pyrenees, built between the 11th and 13th centuries. Seven topographical studies performed between 2014 and 2015 examined these churches systematically using terrestrial laser scanning (TLS) as a data‐acquisition technique. The data obtained allowed for a geometrically accurate analysis of the orientation of these churches based on four Romanesque liturgies: Gemma animae (c.1120), by Honorius of Autun; Rationale divinorum officiorum (c.1150), by Jean Beleth; Mitralis de Officio (1190), by Sicard, Bishop of Cremona; and Prochiron, vulgo rationale divinorum officiorum (1291), by Guillaume Durand.     

Religion,toleration, and religious liberty in republican empire

ABSTRACT

The essay considers the nature and extent of toleration extended by Roman authorities to the religious pluralism of the empire. Roman legal instruments and works of law and political theory identify religion not as a concern of individuals but communities, and above all of juridically-constituted communities. As a related matter, classical and Christian Latin employs the language of political belonging, most notably that of republican citizenship, as its dominant apparatus for discussing religious affiliation. These related conceptual apparatus placed considerable limits on Romans’ ability to afford liberty in matters of religion to individuals.     

Sagax animo: Jonas of Bobbio and the verse epitaph of Pope Honorius

The verse epitaph of Pope Honorius (625–38) inscribed at St Peter’s in Rome and the eulogy of the same pope that Jonas of Bobbio included in his Vita Columbani et discipuli eius (composed 639–42) share language and expressions sufficient to demonstrate that Jonas must have been familiar with Honorius’ epitaph at the time he composed the Vita’s obituary. This fact has implications for both Jonas’ biography and his literary methods. It also raises the possibility that Jonas was the author of the (otherwise anonymous) epitaph. Close reading of the Vatican epitaph highlights not only the epigram’s literary ambition and background but also identifies other correspondences with the lexical and poetic inclinations of Jonas. In turn, these observations undercut pessimism about the literary milieu of seventh-century Rome and Italy.     

Some Karamanlidika Inscriptions from the Monastery of the Zoodokhos Pigi,Balıklı, Istanbul

Abstract

‘Few scholars so equipped are disposed to abandon Homer and Sophocles, Thucydides and Plato, for George of Pisidia, Paul the Silentiary, Procopius of Caesarea and Michael Psellus.’ So Romilly Jenkins explained the late development of Byzantine studies. One might add that fewer still are prepared to forsake George of Pisidia, Paul the Silentiary, Procopius of Caesarea and Michael Psellus for Kaisarios Dapontes, Sergios Makraios, Nikodimos Agioreitis and Athanasios Komninos Ypsilantis. Not so Sir Steven Runciman who, in addition to his manifold contributions to the development of Byzantine studies stretching over a period of almost fifty years, has also found the time to make important forays into the as yet largely uncharted seas of what Nicolae Iorga termed Byzance après Byzance. The ethnic complexity of the Ottoman Empire in its prime is strikingly illuminated in Sir Steven's The Great Church in Captivity: A Study of the Patriarchate of Constantinople from the Eve of the Turkish Conquest to the Greek War of Independence. One of the lesser known features of this great agglomeration of races and cultures was the confusion of alphabets employed by the minorities of the Empire.     

The Militia Ordinance of 1642 and the 14th‐Century Great Statute of Praemunire

This article opens with a review of the important scholarship concerning the conflict over prerogative between the crown and parliament from mid 1641 through the winter of 1642. The resulting impasse was over which of these institutions would control the militia. This article argues that the Militia Ordinance committee was committed to ‘the legal process’ in developing its directive of March 1642. The balance of the study reviews the medieval Statute of Praemunire, its subsequent development, and how that law would have provided an essential basis for the parliament to assume control of the militia. The article concludes that the Long Parliament acted legally with the Great Statute of Praemunire as a reference point for the adoption of the Militia Ordinance. This conclusion rests on five evidentiary considerations: (i) surviving texts of Commons’ private diarists; (ii) the probable role of John Selden in the Militia Ordinance committee deliberations; (iii) the September 1642 publication of John Marsh's An Argument Or, Debate In Law of the Great Question Concerning the Militias; (iv) proposition five of the Nineteen Propositions; and (v) language parallels between the 1393 Great Statute and the Militia Ordinance itself.     

The Threefold Logic of Papua‐Melanesia: Constitution‐writing in the Margins of the Indonesian Nation‐State

Clashes over the status of West Papua and the political future of the territory proliferated markedly following the end of Indonesia's New Order regime in 1998. Amid a wide variety of demands for justice and independence, and a series of demonstrations, mass gatherings and prayers, only a few Papuans mused on how Papua could become a state and what would constitute its nature as being distinctly Papuan and/or Melanesian. One exception is the work put into the Constitution for West Papua entitled Basic Guidelines, State of West Papua, a document edited by Don A.L. Flassy, a bureaucrat, writer and thinker, with a preface by late Theys H. Eluay, then chairman of the Papuan Council. In this article I analyse this Constitution to show how a combination of Christianity and local customs, and a mimicry of elements of Indonesian nation building and symbols of the Indonesian nation‐state are reshaped to oppose Indonesian nation‐building agendas. The Constitution shows that when Papuans imagine an independent state, forms of vernacular legality play a central role. ‘The state’ has journeyed to Papua and encouraged faith in ‘the law,’ and Basic Guidelines is partly the effect of this growing vernacular legality. My analysis shows that it is essential to see how legal mobilisations and imaginations of the state articulate with other normative systems and practices – in particular Christianity and custom (adat) – and how they mutually allow for and invite strategies.     

Maps in Italian atlases of the sixteenth century,being a comparative list of the Italian maps issued by Lafreri,Forlani, Duchetti,Bertelli and others,found in atlases

ABSTRACT

In 1771, Daniel Paterson entered into a publishing agreement with the bookseller Thomas Carnan to print and publish a travel itinerary known as Paterson’s Roads. This book was to become the most enduringly popular practical road book of the period. However, Paterson and Carnan were soon embroiled in litigation. This article examines the legal cases that arose when the geographical information contained in Paterson’s Roads was re-used, and improved upon, in a subsequent publication. It explores the background to the cases, focusing on what they reveal about the inner workings of the book and map trade of the period, as well as considering some of the broader historical ramifications. The article also demonstrates that these cases are of ongoing legal significance because they played an important role in developing some of the doctrines and principles of copyright law that continue to be controversial today.     

MINERO‐PETROGRAPHIC AND GEOCHEMICAL CHARACTERIZATION OF ‘GRECO SCRITTO’ MARBLE FROM CAP DE GARDE,NEAR HIPPO REGIUS (ANNABA,ALGERIA)*

This work presents the results of the first mineralogical, petrographical and geochemical characterization of the marble quarried from the Cap de Garde headland, not far from Annaba (Algeria). This site is traditionally held by archaeologists to be the main source of supply of the so‐called ‘greco scritto’ marble, which was much used by the Romans for architectural and decorative–ornamental purposes, locally from the first century bc , and in Rome and central and southern Italy from the late Flavian period until the fourth century ad . The databank relating to the quarried material, created here for the first time, is used to establish the origin of ‘greco scritto’ found in six important Roman cities of North Africa: Hippo Regius and Cuicul (Djemila), in Algeria; Volubilis, in Morocco; Cyrene, in Libya; and Carthage and Utica in Tunisia. The results of this archaeometric study support the hypothesis (already put forward by authors) that the ‘greco scritto’used in the Roman Mediterranean originated from different sites, and suggest the existence of a number of North African quarries, also in the vicinity of Annaba.     

After Gundovald,before Pseudo‐Isidore: episcopal jurisdiction,clerical privilege and the uses of Roman law in the Frankish kingdoms

The article focuses on the mobilization and reconfiguration of Roman law in the Merovingian kingdoms. It pays particular attention to a collection of legal texts first compiled in the late sixth century, in preparation for the Second synod of Mâcon in 585. Drawing heavily on an extraordinary collection of late Roman imperial laws, the so‐called Sirmondian Constitutions, the bishops sought to declare themselves untouchably sacrosanct. A close analysis of the synodal canons shows that the bishops adapted these imperial rulings to legitimate their position in ways that had no basis in the original laws themselves. The study closes by linking the synod of Mâcon with a debate over episcopal privilege as reflected in the writings of Gregory of Tours, and with a brief look at the further history of the debate in the Carolingian period.     

Plato and the Theodosian Code

The codification project initiated in 429 ad that resulted in the Theodosian Code was originally designed to integrate three types of law: one, imperial constitutions since Constantine; two, the legal material collected in the tetrarchic Codices Gregorianus and Hermogenianus; and three, a florilegium of juristic writings and responsa. The ultimate aim was to condense all this in a single comprehensive law book that would govern the entire life of the empire and its subjects. As this paper shows, such a project had no precedent in Roman legal history and in fact ran counter to the traditional multiplicity of legal sources in Rome. This prompts a question: from where did the intellectual fathers of the codification project drew inspiration for such a revolutionary idea? In the paper's second part, I argue that one important model for the codification project of 429 could have been the legal code Plato designed for the ideal state of the Laws.     

Made in Denmark: Refugees,integration and the self‐dependent society

This article discusses how the values and aspirations of the neo‐liberal competition state (konkurrencestat) and self‐dependent society (selvstændighedssamfund) have affected recently arrived refugees in Denmark. Besides a stricter border regime, the so‐called ‘refugee crisis’ of 2015 also resulted in a new version of ‘integration’ in Denmark that emphasizes the values of responsibility (ansvar), self‐sufficiency (selvforsørgelse) and independence (uafhængighed), as refugees are expected to start working more or less from day one after their arrival. This has led to numerous creative integration programmes in Danish municipalities.