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The Unity of Civilization by Various

V >> Various >> The Unity of Civilization




Under conditions such as these--with the plurality of States
unrecognized by theory, even if it existed in practice, and with
distinction between State and Church unknown and unenforced--we may
truly say with a German writer, whose name I should like to mention
_honoris causa_, Professor Troeltsch, that 'there was no feeling for the
State; no common and uniform dependence on a central power; no
omnicompetent sovereignty; no equal pressure of a public civil law; no
abstract basis of association in formal and legal rules--or at any rate,
so far as anything of the sort was present, it was a matter only for the
Church, and in no wise for the State'.[21] So far as social life was
consciously articulated in a scheme, the achievement was that of the
clergy, and the scheme was that of the Church. The interdependencies and
associations of lay life--kingdoms and fiefs and manors--were only
personal groupings, based on personal sentiments of loyalty and
unconscious elements of custom. A mixture of uniformity and isolation,
as we have seen, was the characteristic of these groupings: they were at
once very like one another, throughout the extent of Western Europe, and
(except for their connexion in a common membership of the Church
Universal) very much separated from one another. But with one at any
rate of these groupings--the kingdom, which in its day was to become the
modern State--the future lay; and we shall perhaps end our inquiry most
fitly by a brief review of the lines of its future development.


IV

The development of the kingdom into the State was largely the work of
the lawyers. The law is a tenacious profession, and in England at any
rate its members have exercised a large influence on politics from the
twelfth to the twentieth century--from the days of Glanville, the
justiciar of Henry II, to the days of Mr. Asquith, the prime minister of
George V. It is perhaps in England that we may first see the germs of
the modern State emerging to light under the fostering care of the royal
judges. Henry II is something of a sovereign: his judges formulate a
series of commands, largely in the shape of writs, which became the
common law of the land; and in the Constitutions of Clarendon we may
already see the distinction between Church and State beginning to be
attempted. With a sovereign, a law, and a secular policy all present, we
may begin to suspect the presence of a State. In France also a similar
development, if somewhat later than the English, occurs at a
comparatively early date. By the end of the thirteenth century the
legists of Philippe le Bel have created something of _etatisme_ in their
master's dominions. The king's court begins to rule the land; and proud
of its young strength it enters the lists against Boniface VIII, the
great prophet of the Church Universal, who proclaimed that every human
creature was subject to the Roman pontiff. The collapse of Boniface at
Anagni in 1303 is the traditional date of the final defeat of the
mediaeval papacy. Everywhere, indeed, the tide seemed on the turn at the
close of the thirteenth century. The Crusades ended with the fall of
Acre in 1291. The suppression of the great international order of the
Templars twenty years later marked a new leap of the encroaching waves.
The new era of the modern national State might seem already to have
begun.

But tides move slowly and by gradual inches. It needed two centuries
more before the conditions in which the modern State could flourish had
been fully and finally established. Economic conditions had to change--a
process always gradual and slow; and a national economy based on money
had to replace the old local economy based on kind. Languages had to be
formed, and local dialects had to be transformed into national and
literary forms, before national States could find the means of
utterance. The revival of learning had to challenge the old clerical
structure of knowledge, and to set free the progress of secular science,
before the minds of men could be readily receptive of new forms of
social structure and new modes of human activity. But by 1500 the work
of preparation had been largely accomplished. The progress of discovery
had enlarged the world immeasurably. The addition of America to the map
had spiritual effects which it is difficult to estimate in any proper
terms. If the old world of the Mediterranean regions could be thought
into a unity, it was more difficult to reduce to the One the new world
which swam into men's ken. Still more burdened with fate for the future
generations was the vast volume of commerce, necessarily conducted on a
national basis, which the age of discoveries went to swell. Meanwhile,
men had begun to think and to write in national languages. Already by
the reign of Richard II the dialect of the East Midlands, which was
spoken in the capital and the universities, had become a literary
language in which Chaucer and Wyclif had spoken to all the nation. Still
earlier had come the development of Italian, and a little more than a
century after the days of Wyclif, Luther was to give to Germany a common
speech and a common Bible. It was little wonder that in such times the
old unity of the Christian commonwealth of the Middle Ages shivered into
fragments, or that, side by side with a national language, there
developed--at any rate in England and in Germany--a national Church. The
unity of a common Roman Church and a common Romance culture was gone.
_Cuius regio eius religio_. To each region its religion; and to each
nation, we may add, its national culture. The Renaissance may have begun
as a cosmopolitan movement, and have found in Erasmus a cosmopolitan
representative. It ended in national literatures; and a hundred years
after Erasmus, Shakespeare was writing in England, Ariosto in Italy, and
Lope de Vega in Spain.

In the sixteenth century the State was active and doing after its kind.
It was engaged in war. France was fighting Spain: England was seeking to
maintain the balance: Turkey was engaged in the struggle. It is a world
with which we are familiar--a world of national languages, national
religions, national cultures, national wars, with the national State
behind all, upholding and sustaining every form of national activity.
But unity was not entirely dead. Science might still transcend the
bounds of nations, and a Grotius or Descartes, a Spinoza or a Leibniz,
fill the European stage. Religion, which divided, might also unite; and
a common Calvinism might bind together the Magyars of Hungary and the
French of Geneva, the Dutchman and the Scot. Leyden in the seventeenth
century could serve, as The Hague in the twentieth century may yet
serve, if in a different way, for the meeting ground of the nations; it
could play the part of an international university, and provide a common
centre of medical science and classical culture. But the old unity of
the Middle Ages was gone--gone past recall. Between those days and the
new days lay a gulf which no voice or language could carry. Much was
lost that could never be recovered; and if new gold was added to the
currency of the spirit, new alloys were wrought into its substance. It
would be a hard thing to find an agreed standard of measurement, which
should cast the balance of our gain and loss, or determine whether the
new world was a better thing than the old. One will cry that the old
world was the home of clericalism and obscurantism; and another will say
in his bitterness that the new world is the abode of two other evil
spirits--nationalism and commercialism. One thing is perhaps certain. We
cannot, as far as human sight can discern, ever hope to reconstruct
unity on the old basis of the Christian commonwealth of the Middle Ages.
Yet need is upon us still--need urgent and importunate--to find some
unity of the spirit in which we can all dwell together in peace. Some
have hoped for unity in the sphere of economics, and have thought that
international finance and commerce would build the foundations of an
international polity. Their hopes have had to sleep, and a year of war
has shown that 'a synchronized bank-rate and reacting bourses' imply no
further unity. Some again may hope for unity in the field of science,
and may trust that the collaboration of the nations in the building of
the common house of knowledge will lead to co-operation in the building
of a greater mansion for the common society of civilized mankind. But
nationalism can pervert even knowledge to its own ends, turning
anthropology to politics, and chemistry to war. There remains a last
hope--the hope of a common ethical unity, which, as moral convictions
slowly settle into law, may gradually grow concrete in a common public
law of the world. Even this hope can only be modest, but it is perhaps
the wisest and the surest of all our hopes. _Idem scire_ is a good
thing; but men of all nations may know the same thing, and yet remain
strangers one to another. _Idem velle idem nolle in re publica, ea demum
firma amicitia est_. The nations will at last attain firm friendship
one with another in the day when a common moral will controls the scope
of public things. And when they have attained this friendship, then on a
far higher level of economic development and with an improvement by each
nation of its talent which is almost entirely new--they will have found
again, if in a different medium, something of the unity of mediaeval
civilization.


BOOKS FOR REFERENCE

W.J. Ashley, _An Introduction to English Economic History_, vol. i, pt.
2, ch. 3; vol. i, pt. 2, ch. 6. Longmans.

Lord Bryce, _The Holy Roman Empire_. Macmillan.

A.J. and R.W. Carlyle, _Mediaeval Political Theory in the West_. W.
Blackwood.

H.W.C. Davis, _Mediaeval Europe_ (Home University Library). Williams &
Norgate.

_Encyclopaedia Britannica_ (11th edition), articles on 'Crusades' and
'Empire'.

J.N. Figgis, _Churches in the Modern State_, Appendix I. Longmans.

Bede Jarrett; _Socialist Theories in the Middle Ages_. T.C. and E.C.
Jack.

E. Jenks, _Law and Politics in the Middle Ages_. Murray.

F.W. Maitland, _Political Theories of the Middle Ages_, translated from
Gierke's _Das Deutsche Genossenschaftsrecht_. Maitland. Cambridge
University Press.

R.L. Poole, _Illustrations of Mediaeval Thought_. Williams & Norgate.

H. Rashdall, _Universities of Europe in the Middle Ages_. Clarendon
Press.

A.L. Smith, _Church and State in the Middle Ages_. Clarendon Press.

H.O. Taylor, _The Mediaeval Mind_. Macmillan.

E. Troeltsch, _Die Soziallehren der christlichen Kirchen_ (II. Kapitel).

P. Vinogradoff, _Roman Law in Mediaeval Europe_. Harper.

FOOTNOTES:

[Footnote 15: I should like to dedicate this essay to my friend and old
pupil, the Rev. Bede Jarrett, O.P., to whom I owe much, and to whose
book on _Mediaeval Socialism_ I should like to refer my readers.]

[Footnote 16: Pirenne, _Revue Historique_, liii. p. 82.]

[Footnote 17: _De Vulgari Eloquio_, 1. viii.]

[Footnote 18: _De Monarchia_, 1. x.]

[Footnote 19: Cf. Carlyle, _Mediaeval Political Theory in the West_, ii.
219-22.]

[Footnote 20: Cf. E.R. Bevan, _Stoics and Sceptics_.]

[Footnote 21: _Die Soziallehren der christlichen Kirchen_, p. 242.]




V

UNITY AND DIVERSITY IN LAW


You know the story of Sophocles' _Antigone_: how, when two brothers
disputed the throne of Thebes, one, Polynices, was driven out and
brought a foreign host against the city. Both brothers fall in battle.
Their uncle takes up the government and publishes an edict that no one
shall give burial to the traitor who has borne arms against his native
land. The obligation to give or allow decent burial, even to an enemy,
was one which the Greeks held peculiarly sacred. Yet obedience to the
orders of lawful authority is an obligation binding on every citizen. No
one dares to disregard the king's order save the dead man's sister. She
is caught in the act and brought before the king. 'And thou,' he says,
'didst indeed dare to transgress this law?' 'Yes,' answers Antigone,
'for it was not Zeus that published me that edict; not such are the laws
set among men by the Justice who dwells with the Gods below; nor deemed
I that thy decrees were of such force that a mortal could override the
unwritten and unfailing statutes of heaven. For their life is not of
to-day or yesterday but from all time, and no man knows when they were
first put forth.'[22]

There you have the assertion of a law supreme and binding on all men,
eternal, not to be set aside by human enactment.

And now turn to this passage from the traveller and historian Herodotus,
an almost exact contemporary of Sophocles. He has been telling how
Cambyses, king of the Persians, has been wantonly insulting the
religion and customs of the Egyptians. 'The man must have been mad,' he
says:

'For if one was to set men of all nations to make a choice of the
best laws out of all the laws there are, each one upon
consideration would choose those of his own country: so far do
men go in thinking their own laws the best. Therefore it is not
likely that any but a madman would cast ridicule on such things.
And that all men do think thus about their laws may be shown by
many proofs, and above all by this story. For when Darius was
king he called to him the Greeks who were at his court and asked
them, 'How much money would you take to eat your fathers when
they die?' And they answered that they would not do this at any
price. After this Darius called the men of an Indian tribe called
the Kallatiai, who eat their parents, and asked them in the
presence of the Greeks, who were told by an interpreter what was
said, 'How much money would you take to burn with fire your
fathers when they die?' And they cried with a great voice that he
should speak no such blasphemy. Thus it is that men think, and I
hold that Pindar spoke rightly in his poem when he said that law
was king over all.'[23]

There you have law, king over men and gods, but a capricious monarch
commanding here this, there that.

This capricious arbitrary aspect of law was a thing which much impressed
the Greeks. They contrasted the varying, artificial arrangements made by
mankind with the constancy and simplicity of nature. We speak of nature
and convention; they contrasted things that are by nature with things
that are by law. It was a contrast that bore fruit later on.

Now law, whose arbitrariness and variety so much impressed the Greeks
was the law not so much of this place or that, as of this or that
community and its members. This is a conception quite different from
that of the modern world. We may paraphrase 'English law' by saying the
law of England, because it is the law which will be applied (with, it
may be, some exceptions or modifications) by the English courts to all
persons, be they English or aliens, who come before them. But Athenian
law is not in this sense the law of Athens, nor, to begin with, is Roman
law the law of Rome. What we find is a law of Athenian or Roman
citizens. The stranger to the city is a stranger to its law. As a matter
of principle he is without rights by that law. His life is not protected
by the blood-feud which his family can pursue, or by the compensation
with which it may be bought off. His marriage with a citizen will be no
marriage, or at best a sort of half marriage. He can acquire no land
within the city's territory, and what goods he brings with him are
pretty much at the mercy of the first taker.

Such, at any rate, is the theory of the 'law of citizens'.

We need not, it is true, believe that it was logically formulated in
primitive times and ruthlessly applied. Some of its applications were
the result of positive legislation due to a growing consciousness of the
self-sufficiency of the city state and of the privileges of citizenship,
as when Athens passed a law excluding from citizenship the offspring of
citizens who had married foreign wives. But in its broad outlines the
principle is sufficiently borne out by the exceptions which were
necessary to make human intercourse possible. The stranger within your
gates is protected just because he is within your gates, and you throw
your protection about him, as is indeed your duty, for suppliants and
strangers come from Zeus. The foreigner, even at a distance, may have a
citizen as representative who can and will defend his rights. A stranger
may be allowed to take up a permanent residence in the city, and by the
mediation of a patron or guardian enjoy private rights not much inferior
to those of a citizen. His legal position will not be very different
from that of a woman citizen, who needs the like mediation. Cities may,
again, by treaty confer on each other's citizens reciprocal rights of
legal protection.

In the middle of the third century B.C., Rome, after its first
successful war against Carthage, took special measures to deal with the
problem of the alien litigant. The great and growing commerce which came
from all parts of the Mediterranean called for something more than a
mere admission to treaty privileges. A special officer was from
henceforth appointed to deal with the law-suits to which foreigners were
parties, and the judgement was given by a body (which we may compare
with our jury) which might include fellow-citizens of the foreign
suitor.

But here a difficulty arose: what law was to be applied to a transaction
between a Roman and a foreigner, or between two foreigners? The Roman
law, the law of citizens, had been codified two centuries earlier, and
its outline had been hardened by the practice of two centuries. The
forms for a transfer of property, for instance, were rigid and solemn;
the foreigner would hardly know them, and if he did, his alien hand
could not effectively do the prescribed acts nor his alien mouth speak
the almost sacred words. The answer was that behind the forms of the law
of this city or that, there was 'a law of the men of all nations'. The
common elements in the ordinary transactions of life, in whatever form
they were clothed, could be taken into account and given effect to.
Thus, side by side with the ownership according to the law of Roman
citizens, the solemn words of promise which only a Roman citizen could
utter, the marriage which only a Roman citizen could enter into, there
might be property, contract, marriage to which any one, citizen or
alien, might be a party.

This 'law of the men of all nations' (_ius gentium_) was of course not
an international law, it was a law administered by Roman officers, and
it was coloured by Roman conceptions, however much it may have drawn
from a comparison of foreign laws with which the Romans were brought
into contact. In turn it reacted upon the more narrow law of Roman
citizens (_ius civile_), broadening its conceptions and enabling it to
free itself from primitive formalism. It also made easier the task of
Roman governors who were called upon to administer the various laws of
the different countries which came to form the Roman empire.

The gradual extension of the citizenship (completed at the end of the
second century A.D.) to the whole of the inhabitants of the empire made
possible, at least in outward appearance, the application of a uniform
system of law throughout what was then the civilized world, though
beneath an apparent uniformity local traditions and customs survived to
the end, at any rate in the east. The 'civil law', as the Roman law in
its final form has been called down to the present day, consists of
elements of the narrowly Roman and the more universal law inextricably
interlaced.

This Roman solution of the problem of the foreign litigant is of much
more than merely practical importance. The Stoic philosophy which grew
up amid the decay of the old city life, whose adherents spoke of
themselves as citizens of the world, had fastened upon the old
antithesis of law (or convention) and nature, and formed the conception
of a law of nature, which should have a reasonable basis and a validity
superior to the arbitrariness of the city law. To this ideal conception
the Roman law of the men of all nations gave a body and a reality.
Stoicism became the 'established' philosophy of Rome, and Roman lawyers
well-nigh identified the '_ius gentium_' with the ideal law of nature,
describing it as that which natural reason has established among all
men. Yet for at least one of the great classical lawyers, whose words
have been enshrined in Justinian's legislation, the identification was
incomplete. By nature, it was said, all men are free, and mankind has
departed from what natural reason requires, in permitting slavery. Thus
the law of nature must be sought in something more universal than the
practice of mankind. More than fifteen hundred years later in an English
court an argument against the recognition of the rights of a slave-owner
was successfully founded on the law of nature.

Before the Roman law had been put (at Constantinople) into the final
shape in which it is preserved to us, the Roman empire in the west had
already been broken up by barbarian invasions. The invaders brought with
them their tribal laws and customs, rude, often cruel, narrow rather
than simple, for simplicity is the work of civilization. They did not
understand, and could not adopt, the law of the world into which they
had come. Yet neither could they, if they would, force their laws upon
the conquered inhabitants. Among these the old civilization lingered on
in a degenerate form, and with it the Roman law. One of the first things
that happened was that the conquerors drew up for their Roman subjects
short codes of the Roman law as it survived in a debased form, as they
drew up statements of their own law for their followers. For a long time
each man, according to the community to which he belonged, had a
'personal' law. As late as A.D. 850 we hear that in France it might
happen that five men met together and each would have a different law.
Of course such a state of things means before very long that there must
be at any rate one set of common legal rules which must be applied
throughout a territory, namely rules to decide which kind of personal
law is to be used when there is a dispute between two persons whose
personal law is different.

Gradually the different populations within the same area coalesce, and
law from being personal becomes local. But the local area will not be
the same for all purposes. The law or custom which determines the rights
of the small, often unfree or half-free tenant, whether as between him
and his neighbour or as between him and his lord, may extend no further
than a very small area, such as in England we call a manor. The law by
which great men held their land from a king, though perhaps not uniform
throughout the kingdom, will cover a much larger area. The fact that a
great man may hold land in far distant places, it may be in different
kingdoms, and that men of this class have connexions with different
parts of Western Europe will lead to the formation of common notions of
feudal law, which make possible even the scientific study of a law of
feuds, though no complete uniformity was ever attained.

England was the first western country to attain political unity with a
territory substantially the same as at the present day; and the
determination of the English kings that in the more important matters
justice should be done throughout the land in the king's name, either by
his courts at Westminster or by judges sent by him to the counties,
secured the formation of an English Common Law which left comparatively
little play for local custom, and which at an early time became strong
enough to resist attempts to introduce foreign law. As early as the time
of Henry III the barons proclaimed with one voice that they would not
have the laws of England altered in favour of a rule--the legitimation
of bastards by the subsequent marriage of their parents--which in one
form or another has been adopted in Western Christendom, and even in the
neighbouring kingdom of Scotland.

In France political unity was reached only later and bit by bit, and
when it came the difference of law in the various provinces was too
firmly established to make uniformity possible until the time of the
Revolution. In Germany the shadowy unity of the Holy Roman Empire was
never enough to afford any effective central administration of justice.
National law in the strict sense was impossible under such conditions:
the most that can be expected is such a degree of unity as results from
common traditions inherited from more primitive times, and a community
of language and national feeling.

Amid local and national diversities of law there were at any rate two
unifying influences, the Roman and the Canon law. In some parts of
Europe, as in the South of France and Italy, the traditions of the Roman
law had never died out, and in a debased form, with much admixture of
the law of the invaders, it had come to form the basis of the local law.
In others it was the barbarian law which formed the groundwork. But just
as behind the new languages, whether in the main founded on Latin or on
Teutonic, Latin remained the medium of intercourse between the countries
of the West, and the instrument of thought and learning, so Roman law
remained a tradition which was ever ready to exert an influence. It is
not only in law courts that law is learnt and developed. Transactions
have to be drawn up in writing, and will largely be made in Latin, and
founded on precedents. The grants of land to and from ecclesiastical
bodies especially will be in a form which borrows much from Roman or
romanesque models; and they will form models for the transactions of
others. Even the formulation of native law in the early codes will be
carried out by men who know of no written law except the Roman. In the
twelfth century Roman law becomes a subject of University study
throughout Western Europe, in Italy, at Paris, even at Oxford, and forms
a part of that international learning which scholars carry from land to
land. Men trained in the Roman law rise to high positions in the public
service. As judges and administrators they will not forget what they
have learnt as students or taught as doctors. Yet it would be easy to
exaggerate its influence, great as it was. It was certainly more as a
form and method of legal thought than as an actual source of legal rules
that it made itself felt, for instance, in our own country, and the
strength and cohesion which it helped to give to our law enabled that
law later to resist its further advance.

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