Guilt and the Origins of Modern Law

Guilt and the Origins of Modern Law

Chris Thornhill

Introduction: Guilt, positive law and the legal person

Underlying the institutional and ideal forms that support modern European society it is possible to identify a process of legal transformation and abstraction, beginning in the medieval era, through which the law acquired the ability to offer itself to society as positive law.[1] In medieval Europe, the law underwent a lengthy process of positivization, and it gradually developed as an intelligence within society that could sustainitself without reliance on extra-legal facts such as particular consent, custom, or religious sanctity, and that could articulate and memorize concepts in order internally to authorize judicial and political decisions and to render these decisions inclusively valid for all society.[2] Positive law, thus, evolved as a medium that allowed society, in its entirety, to give a consistent construction of itself as uniformly lawful,to organize its exchanges, across the fissures in its expanding form, around the relatively consistent body of norms arising from its lawfulness, and to include all social exchanges and agents in the law’s application. In consequence of this, positive law also evolved as a medium that allowed societies to distribute law from relatively stable and regular centres, and to concentrate its power in quite specific political institutions. Observably, the positivization of law did not only bring benefits to society. The abstraction and generalization of law as positive law meant that society relied for its normative self-construction on inherently precarious legal patterns, and that society’s lawfulness, having lost its substructure in concrete conventions or personal assent, incorporated much inner insecurity and contingency. Positive law, in general, is law that necessarily risks being unsettled: it requires an armoury of internal constructs to which it can refer for self-explication and to occlude itself against knowledge of its contingency. But the construction of law as positive law, and the volume of contingency that the law accepts because of its generalized abstraction, are preconditions of modern society. A society cannot existas a modern society, incorporating expansive and increasingly differentiated social spaces and including social agents in all their diverse functions, without law’s positivization.

If the positivization of society’s legal intelligence underlies modern European societies, it is also observable that law emerged as positive law because it was able to internalize and articulate a highly abstracted construct of personal guilt, and it accounted for guilt as a property determined under general law. Not all law, it is clear, presupposes guilt as its primary reference. Guilt is formative of criminal law, but it plays a lesser role in civil law, private law and constitutional law. Moreover, modern law has the dominant characteristic that it is relatively indifferent to inner moral motivations, and it places its focus on externalized and juridically pre-constructed accounts of malfeasance and transgression. Despite this, however, it is vital to the positive law of modern societies that it evolvedincreasingly generalized and inclusive constructions of guilt, that it applied itself to guilt in overarching or highly abstracted categories, and that it progressively organized society’s norms around concepts of guilt, which it conserved within itself in generalized, autonomous and relatively invariable principles. Pre-modern law, to be sure, was also a mechanism for regulating guilt. However, pre-modern law did not widely acquire internally constructed or consistently generalized accounts of guilt, and its ability to designate or apply itself to guilt in sectorally and temporally inclusive fashion was weak. It was deeply ingrained in pre-modern European law, for example, that it was closely tuned to time-honoured and localized privileges, exemptions and immunities, and it proportioned its application to extremely variable and socially adjusted ideas of guilt, contravention and commensurate sanction.[3]Of course, not all pre-modern laws were specifically determined by status. Early medieval societiesalso possessed formal codes, based in Roman law, that were guided by positive, general principles. However, personal status played a vital role in earliermedieval customary law. Under the principle of immunity,the measure of criminality did not solely depend on law’s inner comprehension of actions. Instead, criminality often rested on a ius singulare, and it wascalibrated to reflect the particular jurisdictional powers accorded to different courts, the authorities of different legal plenipotentiaries, and the social position of persons suspected of criminality.[4] This meant that different persons could be characterized as guilty in different ways, even where they had committed the same transgression, and pre-modern law generally adapted its sanctions to individual persons and to integrate local and socio-structurally determined sensibilities. In addition to this, pre-modern law allowed its rulings over guilt to depend on local hearings, and in this respect too it admitted substantial variation in the measurement of guilt. Similarly, in many cases, pre-modern law permitted judicial outcomes to be personally contested: this also meant that the assessment of guilt was determined by acutely irregular and unpredictable extra-legal facts,[5] so that the attribution and classification of guilt could not be translated from case to case. For these reasons, pre-modern law did not reliably possess internally generalized ideas of guilt; it tended to construct guilt in a manner that was deeply particularized and admitted numerous exemptions. In consequence, pre-modern law struggled to embody ideas of guilt that it could justify within its own corpus of self-references or apply uniformly across socially analogous cases of misdemeanour, and societies were unable to produce fully inclusive accounts of their lawfulness and their normative structure. It was only with the law’s internalization and articulation of uniform constructs of guilt that it acquired the capacity to observe its objects in generalizable and relatively perennial categories, and to stabilize itself, and society as a whole, around predictable processes of legal application.

Law’s uniform construction of guilt contributed most substantially to the positive generalization of law by permitting law to construct those subject to it as persons. Law’s reflection of guilt as relatively indifferent to status or locality made it possible for law to designate exactly the cases in and the agents to which it should be applied, and it enabled law to concentrate its application around generalized and predictable points of address throughout society. In constructing generalized points of address, the law also acquired the faculty uniformly to express the causes and procedures of its application, and so to transmit itself across society in relatively invariable and easily replicable fashion. The general points of address that the law reflected through its construction of guilt were ultimately conceived within the law in the form of persons: that is, the law allowed its generalization of guilt to solidify around a generalized image of its addressees, and the person, as a figure endowed with legally relevant attributes that the law could imagine as largely invariable across setting and status, began to emerge in law as a relatively static object of legal attribution and application. The general construction of guilt, thus, made possible, in law, the general construction of the person, and, in the form of the person, the law produced from guilt an idea of its addressee as a regionally, sectorally and temporally self-identical agent. This, in turn, acted as a crucial stimulant in law’s positivization. The fact that law could refer to itself as a general medium applied to persons meant that law could project, across all social interfaces, a highly simplified terrain for its circulation,and it could, from within this reference, positively transplant its rulings across very diffuse social locations. This allowed law to obtain a greatly augmented extensibility through society, and to separate exchanges and agents relevant to law from their particular or embedded place in social structure. It thus gave to law the facility to include a great diversity of social exchanges (as attached to general persons) in society’s normative order. The moment in which law first began fully to function as positive law was the moment in which law identified its addressees in generalized and inclusive categories (as persons), and in which it learned to apply itself to these addressees in generalized and internally consistent fashion (as persons): the precondition for this general personalization was that law internalized a transferable and reliable construction of guilt.

The person and the soul

The broaderpreconditions of legal and political inclusivity in modern European society resulted from a series of decisive structural and political shifts in high medieval Europe. At one level, the original formation of modern law was stimulated by the renaissance of learning in civil law in the twelfth-century law schools of Bologna and other cities in northern Italy. Spreading outward from Bologna, Roman civil law was widely received throughout high-medieval European society as a body of instruments for generating positive-legal forms. Indeed, the beginnings of the modern concept of state sovereignty can be discerned in the strategic appropriation by worldly states of the Roman-law concepts of plenitudo potestatis, plena potestas and lex animata, which, from this time on, were increasingly invoked by secular rulers to underwrite positive legislation. Notably, this period also witnessed the initial consolidation of the common law in England. Despite the importance of Roman civil law in laying the foundations for modern law, however, the most fundamental stimulus for the emergence of positive law can be traced to principles of ecclesiastical law, which were constructed around the end of the first millennium and then more firmly established in and after the age of Gregorian reform in the late eleventh century. In this respect, it needs to be clear that the distinction between ecclesiastical and secular law was neither strict nor decisive. In many cases, church law was founded in principles of legislative authority derived directly from the Roman law, and reformist popes often used constructs of Roman civil law as formulae for cementing their own abstract legislative status.[6] Nonetheless, owing to the fact that the church was a universal institution and increasingly aspired to overreach cultural and regional variations, it was the Gregorian church that set the general legal foundations of modern Europe, and the church initiated a dynamic of legal positivization and inclusion that persisted, formatively, throughout the entire medieval and early modern era.

Primarily, the Gregorian era was determined by the concept of papal monarchy. At this time, the church was separated from the local/personal arrangements characteristic of European feudalism, it increasingly asserted power over secular institutions, and it consistently extended its original spiritual authority – its duties of care for the soul – to consolidate itself as a legally ordered hierarchy of governmental institutions.[7] To this end, the church began to organize its inner constitution in a consistent positive-legal structure: it began to assume stable legal form by enshrining principles of internally regimented monastic order and legal discipline;[8] it began to centralize legislative and judicial power (using a systematized account of Roman law) around papal authority, and strictly to direct papal power through the legislative and judicial power of bishops;[9] it began to equip itself with a densely ramified legatine regime that ensured papal control over the church in different localities;[10] and, vitally, it began to exclude other sources of law, and to extirpate all laic or secular influences from its innermost constitution. To this end, additionally, the church began to systematize its outer form: it began to cement its arbitrational functions and to provide precise measurement of the deficiencies in human life and in the human soul that it was required to rectify; it began to transpose these measurements into intensified powers of jurisdiction; and it began, most importantly, to issue canonical legal codes and constructs that determined the application of its legal power across extensive and otherwise highly varied geographical, sectoral and temporal spaces.[11] In the Gregorian era, in short, the church finally and conclusively turned outward its care for the soul, it distilled its judgements over the soul into a growing and iterably extensible body of legal forms, and it allowed a legal construction of its care for the soul to act as a mainspring in a process of widening and increasingly positive legal and political expansion. To be sure, the legal codification of ecclesiastical order was not entirely new to the Gregorian era. There already existed an extensive body of canon law based in compilations of papal decretals (real and spurious). Nonetheless, in this era the ecumene of Christianity was definitively transformed into a legally inclusive body of members, and affiliation to the ecumene necessarily implied subjection to external ecclesiastical jurisdiction, legislation and arbitration.[12] Indeed, the Gregorian period marked an era in which, for the first time since late antiquity, one institutional body (namely, the papal church) was able to apply generalized power throughout society, and, from within itself, to positivize laws supporting and mediating this power.

In addition to the impact of papal monarchy on the church itself, the transformation of law in the reformist church extended beyond the ecclesiastical realm, and, in a number of ways,it began to create a positive foundation for all law and all legal institutions. First, most obviously, the early consolidation of worldly power in European societies was immediately promoted by the Peace of God movement,which followedthe end of the first millennium. This was a movement in which the extremely violent societies of the earlier feudal era accepted pacification by actors in the reformist church: ecclesiastical potentates were called upon to place a legal prohibition on acts of secular/political violence, such as feuding and judicial combat, and they enforced this through ecclesiastical sanction – excommunication. Through the Peace of God, the church began to create a regular legal order in Christendom, and Christian culture began, precariously, to define itself as uniformly bound under law.[13]This created the rudimentary preconditions for the later assertion of legal power by states, and it even established a worldly system of authority which eventually undermined the powers of the church.[14]In some settings, notably in the cities of northern Italy, peace-keeping oaths authorized under the Peace of God were fundamental to the legal systems of secular states.[15]Second, even as it promulgated doctrines that accentuated the primacy of papal power, the Gregorian church defined worldly states as bodies possessing a definite relation to the church and acquiring authority through this relation. In consequence, statesbegan to explain themselves (at one remove) as deriving aspects of their legitimacy from the same source that authorized the church and the law of the church.[16] In this respect, the church conferred an indirect legitimacy and autonomy on the state, and it slowly delineated a distinct basis of positive authority for the state to exercise in its legislative acts. Indeed, in some contexts the Gregorian reforms and resultant processes of legal formalization greatly strengthened the legal order of particular states. In the first instance, the formalization of papal authority was specifically intended to undermine the powers of the Holy Roman Emperor, and, to this end, the codification of law by the church often entailed de iure recognition of the statutory autonomy of territories within the Empire.[17] This process even led to an affirmation of the customary legislative powers of the semi-independent cities within the Holy Roman Empire, whose rulers were able to extend their legal foundations through the increasing acknowledgement of their autonomy under canon law.[18] Third, as the Gregorian reforms established a body of consistent legal principles to define the power of the church, states gradually emulated the positive forms and procedures underpinning the law of the church. Like the church, states assimilated principles of Roman law to consolidate themselves, to the exclusion of both ecclesiastical and local or private legal sources, as centres of generalized jurisdictional power.[19]In this regard, Roman law played a crucial role in the process of secular centralization and de-feudalization in medieval Europe. Fourth, then, as the Gregorian reforms insisted on the strict expulsion of laic influence from the church, early states (for all the immediate disadvantage that they suffered as a result of this) were also able to accept this exclusion, not only as concentrating ecclesiastical authority, but as delineating and consolidating the contours of worldly jurisdiction. Through this process, states assumed the (paradoxical) authority to define themselves as legal orders that were categorically distinct from the church, and that were increasingly qualified to supplant the church in worldly spheres of jurisdiction.[20]

For these reasons, although arising from the church, the legal innovations expressed in the Gregorian reforms and ensuing jurisdictional controversies articulated the first – albeit tentative – move towards the institution of generalized or even public conditions of positive law in the secular domain. These developments enabled secular political actors to emerge as institutions furnished with distinct and positive legal structures, and capable of generating positive and exclusive foundations for the exercise of their power.[21] Indeed, as they brought church and state into a simultaneously adversarial and pararistical relationship, the Gregorian reforms necessarily set the foundations for a wider subsequent process of legal intensification, which affected all areas of society in later medieval Europe.[22] As a result of the reforms, both church and state were constantly obliged to devise, clarify and positivize new juridical instruments for positioning themselves against each other and for defining their legal apparatus in a sustainably positive yet generalizable order. As a result, later medieval societies experienced a dramatic increment of legality, in which central institutions in society were defined in increasingly abstract laws, social and political exchanges were progressivelyjuridified and constructed in legally formalized registers, and all social relations witnessed a thickening of legal structure and regulation. In the church, this process of legal intensification was evident both in the factual administration of the ecclesiastical apparatus, and especially in the increasing codification of canon law and church constitutions during and after the Gregorian era. In the state, this legal thickening was visible in practical processes of judicial positivization, political centralization and de-feudalization.[23] In both state and church, the later medieval period was a period in which law and religion acted together to create a condition of rapidly intensified juridification, legal positivity, and universally mandatory lawfulness. Through this process, both church and state were formed as the institutional fulcrums of the abstracted legal power now contained in the structure of European societies. Other (local or patrimonial) sources of power, although perhaps preserved under general laws or rights of delegation,[24]lost importance because of the wider expansion of centralized administrative centres with internal legal means to abstract and enforce society’s power.