Authority and Corporation in the Middle Ages
Altogether, a portion of the rational basis for a moral system is cut away where persons and corporate actors must coexist. The immediate question is: What can replace it? (1 )
The development of this paper initially rests upon the assumption that many of the current problems confronting students of modern corporate structure stem from the difficulty of relating traditional frames of reference to present conditions. So far as may be determined, no effective and comprehensive science of corporate behavior has appeared that might adequately complement the rapid growth in the size, complexity and interdependency of modern corporate organization. Neither the vague moral prescriptions of the past, nor the mathematical logic of modern economics would seem to contain the necessary links between men's beliefs concerning a world in which they live, which ultimately come to be reflected in the structures of society, and human behavior, which collectively informs the functioning of those structures.
In the following pages, the early evolution of medieval, Western European concepts of authority and corporation will be traced in an attempt to explore some of the possible sources of the current "disjunction" of past and present. The size of the problem under consideration in this study has to a great extent necessitated the sacrifice of breadth and scholarship for depth of analysis, and consequently resulted in the strong reliance upon the care and accuracy of scholarship to be found in the secondary sources used. Moreover, given the length and complexity of the historical development to be examined, the following discussion, however selectively highlighted, should be seen as little more than a general sketch or outline, emphasizing that which is common to, rather than unique within, the conceptual history of the several medieval European states.
The difficulties of writing this sort of paper are, understandably, if somewhat paradoxically, identical with those one would attempt to help resolve by writing it: those of discovering clear and effective perspectives through which history and conceptual theory might be related in terms as applicable to uniquely modern problems as to the need for a sense of connection with the past. Plus, as a means of reducing some of these difficulties at the outset, it seemed best to divide the paper into two parts, the first part tracing the historical medieval development of the concepts of authority and Corporation, the second part discussing more speculatively the implications of the first part for modern theory.
During the historical period between the fall of the Western Roman Empire and the beginnings of the Holy Roman Empire (476-800 A.D.), the medieval church had largely come to replace the ancient Roman state as the prevailing social and political force in Western Europe.
... The church had based its diocesen boundaries on the boundaries of the Roman cities.... The more that general prosperity declined, the more their [the bishop's] power and their influence had a chance to assert itself. Endowed with the prestige which was the greater because the state had disappeared, sustained by donations from their congregations, and partners with the Carolingians in the governing of society, they were in a commanding position by virtue of, at one and the same time, moral authority, their economic power, and their political activity. When the Empire of Charlemagne foundered, their status, far from being adversely affected, was made still more secure. The feudal princes, who had ruined the power of the monarchy, did not touch that of the Church, for its divine origin protected it from attacks. (Footnote 2)
The society in which this was occurring did not consist, however, in large, extended, socially and politically interrelated hierarchies through which an individual might rise to the extent it suited his or her will, talents and fortune, but was made up rather of numerous tightly stratified small local hierarchies, territorially distinct, and for the most part, socially and politically disconnected. What self-protection did exist for the individual lay much less in man-made laws and his own powers of initiative than in feudal custom and the divine law of God as represented in the earthly agencies of the Church and the Christian kings. The faith in the power of heaven, rather than rational consideration of the human condition, and the basic acceptance of one's given position in society, rather than continual struggle for control over one's earthly fate, were attitudes best fitted to a time in which notions of human progress and social change were largely absent.
Christianity for the medieval band not merely gave promise of a better life in the next world; it gave to this uncertain life of violence, striving, imperfection, and want on earth meaning, limit, and purpose that came near to closing, for most men, the gap between what they had and what they wanted. Medieval man was more nearly resigned to a world he could not greatly change. He felt secure in the midst of what we should regard as insecurity -- violence, physical want, hardship, even fears spread of ignorance of what we regard as natural phenomena.... The medieval man felt as truth what in a later philosopher, Leibnitz, was no more than a rather insincere intellectual formula -- that this is the best of all possible worlds. Not a happy, not a contented world, for in such a world man would usurp the place of God. It was, quite simply, God's world. (Footnote 3)
Thus medieval folk found in their faith an ordering principle best suited to the social immobility stemming from the fixed requirements of local custom on one hand, and the divine proclamations of God's Royal and ecclesiastical agents on the other.
In turn, whatever power did accumulate to the officers of the church and the Royal benefactors was, in theory, theirs only by the grace of God. In this respect, too, philosophy suited the practical realities of the time, considering the political limitations imposed upon an aggressive development of centralized state government by the military and territorial autonomy of the numerous feudal fiefdoms.
In medieval theory, only God was absolute; the men through whom he worked on earth were no more than his agents, and as men could be judged as other men if they went against God's law and nature's. In medieval Western practice, division of authority between lay and spiritual powers, the conflicting claims of thousands of feudal lords, and the universal appeal to custom as authority made established absolute rule quite impossible. (Footnote 4)
In an important sense, however, governmental theory and practice had remained distinct. Despite the absence of a sufficiently unified, territorially extensive society over which to exercise immediate control, the Church had nevertheless taken
for its own concepts of organization those derived from the ancient Roman empire.
The Christian Church was not organized for civil and political life. In its expectations of the "Kingdom" it had for a long time dwelt in a provisional abode. When it felt itself becoming a majority and a power in the state, and became reconciled to the idea of living the life of this world, it became aware that it had omitted to work out a code of private and public law which alone makes normal existence possible. Such a law existed, Roman law, the most perfect ever known. The Church adopted it and fitted itself into the framework of the ancient legal institutions. (Footnote 5)
So even though in fact the day-to-day exercise of political power had spread out and broken up into the hands of feudal landlords and local authorities, the ancient Roman idea of a territorially extensive, centralized system of government, in which power descended from the top down through a hierarchy of officials, was being maintained in form, if curiously altered in substance, by ecclesiastical institutions and concepts of authority. Thus, while in terms of overarching theory,
The concept of the superior and the inferior, the one above, the other under, seems to... sum up the function and status of the individual, at least within the pure descending doctrine, for only by identifying himself with the law and government
of the superior, that is, by active obedience, could the faithful be and remain one... (Footnote 6)
in fact... village self-government became a practical measure not suggested by any theory, not initiated "from above," not legislated by a "superior," but practiced as a "natural" way of conducting the business of the village. (Footnote 7)
Keeping this contradiction between theory and fact in mind, let us look more closely at the evolution of medieval concepts of authority.
Throughout the early feudal period, and up until the end of the 11th century, the ultimate justification of authority in human affairs continue to derive from what Kantorowitz refers to as the idea of Christ-centered kingship.
After the advent of Christ in the flesh, and after his ascension and exaltation as King of Glory, the terrestrial kingship underwent, very consistently, a change, and received its proper function within the economy of salvation.The kings of the new covenant no longer would appear as the "foreshadowers" of Christ, but rather as the "shadows," the imitators of Christ.... The divine prototype and his visible vicar were taken to display great similarity, as they were supposed to reflect each other; and there was... perhaps only a single -- though essential -- difference between the anointed in Eternity and his terrestrial antitype, the anointed in Time: Christ was king and Christus by his very nature, whereas his deputy on earth was king and christus by grace only. In other words, the King becomes "deified" for a brief span by virtue of grace, whereas the celestial King is God by nature eternally. (Footnote 8)
I would suggest here that so long as the Roman concept of political organization inherent to ecclesiastical theory remained relatively undeveloped, the feudal subject might "identify" himself fully through his obedience to Heaven’s early emissaries
in a way that benefited him spiritually, but detracted little from his immediate material existence. During the 12th century, however, Western Europe underwent an economic revival, which brought with it new territorial developments and a series of changes in concepts of authority that, altogether would lead to an alteration in the significance not only of the spiritual "identity" of the earthly ruler, but also of the active and "identifying" obedience of his individual subjects.
... The theories of the Norman Anonymous [an unknown Norman cleric, ca. 1100 A.D.] are not centered in the notion of "office" as opposed to man, nor in constitutional or social considerations; they are christological and christocentric.... His vision
is, on the whole, more closely related to the liturgy, to the holy action which itself is image and reality at the same time, than to the distinction of functional capacities and constitution competencies, or to the concepts of office and dignity as opposed to man.... This philosophy was not of the times to come.... the victory of the revolutionary Reform Papacy in the wake of the Investiture Struggle and the rise of the clerical empire under papal guidance, which monopolized the spiritual strata and turned them into a sacerdotal domain, negated all efforts to continue or renew that king-priestly pattern of liturgical kingship.... On the other hand the new territorial states which began to develop in the 12th century were avowedly secular despite continual borrowings from the ecclesiastical and hierarchical models; secular law, including secularized canon law, rather than the effects of the holy chrism, were henceforth used to justify the holiness of the ruler.... The pattern of Christ centered kingship for which he fought belonged to the past. (Footnote 9)
As economic conditions continue to improve, and the powers of the European rulers increased in force and extent, secular legal concepts gradually came to replace the more purely ecclesiastical concepts as the theoretical basis of authority in the state. What was, in one sense, a fuller reification of the abstract, hierarchical, ecclesiastical concepts of authority into practical political organization brought with it subtle transformations in the substance and focus, if not in the formal outlines or essentially mystical character of those concepts.
... A period of transition from the earlier liturgical kingship to the late-medieval kingship by divine right, a period, clear in its contours, during which a royal mediatorship, though strangely secularized, still existed, and during which the idea of royal priesthood was vested in the Law itself. The former ontological aspects of a royal christomimesis inherent in the concept of the king' s gemina persona may have grown paler,but functionally the ideal of the Prince's twin-like duplication was still active; it became manifest in the king's new relationship to Law and Justice, which replaced his former status in regard to the Sacrament and Altar. (Footnote 10)
Though the fact that this shift in the concept of the king was accompanied by a major economic transition suggests strong connections between material growth and changes in the idea of authority, specific cause-and-effect relationships would seem to be exceedingly difficult to establish. Nevertheless, and despite the dangers inherent in attributing to the long, complex and multivarious political evolution of the disparate medieval states any single pattern of development, it would seem fair to say that in general, as economic conditions improved, the relationship of the ruler to the world of men increasingly came to take precedence over his relationship to Heaven. As liturgical and theological concepts of kingship came to be reinterpreted by the medieval jurists, the "inner tension" characterizing the idea of the prince, which had been originally represented as falling between his royal person and the Divinity that it had come to embody, gradually changed to become wholly contained within the royal office itself, deriving from the prince' s dual relationship to the Law. In a sense, the prince has come to "replace" Christus within the old conceptual framework, if only in so far as the "distance" between heaven and earth, with the "return" of Christ to a purely ecclesiastical or non-temporal domain, has been increased. The prince or king thus both represents and serves the Law of God the Father, thereby shifting significantly their relation to Heaven, while still maintaining the mystical enhancement of royal office.
The ecclesiastical adoption of Roman organization concepts had helped to preserve the framework of the ancient legal institutions. Now, as the medieval jurists began to reinterpret the early Christian theological notions of earthly rule, Roman law came once again into the historical foreground.
The Prince did not cease to be "king and priest," but he regained his former priestly character -- shattered, or at least reduced, after the Investiture Struggle -- through the high pretensions of Roman legal philosophy which compared jurisprudents with priests. The ancient solemnity of liturgical language mingled strangely with the new solemnity of the Civilians... the source and point of reference no longer were the Book of Kings and the Psalter, but the laws of Justinian; it was after the model of this Emperor that the new books of codified law represented the sacrificium justitiae: the books themselves were the rulers' oblation and offering. (Footnote 11)
To the individual medieval subjects for whom the king had come to represent the earthly embodiment of God's grace, relatively remote, in a political sense, from the daily life of the feudal manner or village, the change in the concept of kingship in relation to Law, particularly as it accompanied the increasing power and territorial extent of the State, was of no little consequence. The worldly authority from whom the obedient had come to draw the ultimate meaning of their place on earth was gradually taking on a significantly new complexion.
In the Law-centered era... in the language of the jurists, the Prince no longer was "god by grace" or the living image of Grace; he was still the living image of Justice and ex officio he was the personification of an Idea which likewise was both divine and human. The new duality of the Prince was founded on the Goddess of religio iuris. However, the field of tension no longer was determined by the polarity of "human nature and divine grace;" it had moved toward a juristically formulated polarity
of "Law of Nature and laws of man," or to that of "Nature and man," and, a little later , to that of "Reason and society,” where Grace no longer had a discernible place. (Footnote 12)
Even while the secularization of the concept of authority was accompanied by the extension of centralized political power, the emerging medieval states were not yet strong enough to absorb all the new activities attending economic growth within their own structures. On the other hand, the social rigidity of the feudal system was too restrictive to accommodate the new economic conditions. A more flexible social unit was needed, one better suited to a more dynamic society. It was in this context, then, even as the concept of the "status" of the ruler was changing in terms of his relationship to Heaven, that notions about the status of the individual subject of society began to change also. The origins of this transformation lay, according to Walter Ullman, in the individualistic and personalized compacts of feudalism itself.
... It was the reality of transacting public business -- if I may use as great a name for quite primitive activities -- by the lower reaches of the community which, in conjunction with the feudal form of government, was to provide some secure foundation for the later emergence of the doctrine of the individual as a full-grown citizen.... In other words, we have here a "system" at work which shows all the features of the ascending theme of government and law, according to which original power resided in the members of the community, in the individuals themselves. (Footnote 13)
Simple cause and effect relationships among the factors which led to these changes, however, would seem very difficult to establish. On one hand, one might say that alterations in the concept of rulership were in part a product of the increasing necessity that the king acknowledge and accommodate the independence of his subjects: that as the secular involvements of the State enlarged beyond the direct and complete control of its powers, the more necessary it became for the king to acknowledge, rationally and contractually, the practical autonomy of diverse and separate economic interests inside the realm. On the other hand, one might say that the enhancements of the subjective status of the individual subject stemmed in part from the secularization of the concept of rulership that accompanied the strengthening of the territorial state: as the conceptual interpretation of worldly authority changed, so did the basis of self-esteem of the "identifying" individual. Most likely, however, the process of change was, like the social relations of the feudal age in which it commenced, reciprocal in character -- changes on either side informing those on the other, at the same time that medieval European society as a whole was undergoing an economic transition.
It is not yet fully appreciated that the prevalence of feudal law and feudal conceptions also provided the theoreticians of the law, mainly the Roman lawyers, with a platform that enabled them to restrict the Ruler' s plenitude of power. It was increasingly maintained that despite his plenitude of power, he could not deprive a vassal of his fief unless the latter were convicted before his peers of a felony. This point of view would not be worth mentioning were it not that the feudal customs upon which it was based were presented as falling within the category of natural law and every ruler was said to be bound by the natural law. (Footnote 14)
I would suggest, however, that what resulted from the early legal interactions between the representatives of what Ullman calls the "descending" and "ascending" themes of government was as yet less a change in the essence of the concept of centralized, territorially extensive, hierarchical authority than a series of curious reinterpretations of it. The peculiar emendation and sophistication of the concept of authority that resulted would not seem to have stemmed, however attractive such an analysis might be from a more modern perspective, wholly from socio-economic causes, e.g., the shift in emphasis from grace to "nature" occurred during a time when the State was seeking to consolidate its own widening interests vis-à-vis a multitude of secular activities that it could still not immediately encompass within its own structure. The conceptual changes that occurred must also be viewed within the context of an attempt on the part of the medieval jurists to resolve a dilemma, at once both moral and practical, concerning the status of the king: how might they properly distinguish between the ruler's obligations as servant of the Natural Law, Divine and universal, and his rights as worldly executive of the Positive Law, temporal manifestation of Natural Law.
... the king was bound only to Divine or Natural Law. However, he was bound to the Natural Law not merely in its transcendental and meta-legal abstraction, but also in it’s concrete temporal manifestations, which included the rights of clergy, magnates and people -- a very important point in an England which relied predominantly on unwritten laws and customs. (Footnote 15)
From the contradictory concepts of a king-making Law, and a lawmaking king, the practical question that emerged was how to establish a legal, formal basis for the materialization and perpetuation of the worldly interests of the Crown. As a servant of the Natural Law, the king could have no private worldly interests; on the other hand, as a feudal landlord, first among equals, his personal rights and obligations ended with his death.
The way in which this dilemma was resolved is implied in the maxim, Nullius tempus currit contra regem, or Time runneth not against the king. And it connotes a key step in an evolution of thought that would ultimately result in a more highly sophisticated concept of authority, and the legal fiction of corporate personality.
A change... came with accession of Henry II [England, 1154-1189 A.D.], whose consolidation of the royal demesne, together with his other administrative and legal reforms, bred the understanding that certain domainal rights and lands were inalienable. The two Laws, Roman and Canon, were certainly contributing factors in making the idea of inalienability of state property articulate; but the essential factor is that Henry II created a de facto inalienable complex of rights and lands which later, in the 13th century, came to be known as the "ancient demesne" -- a suprapersonal compound of rights and lands which was separate from the individual and definitely not his property -- gave substance to the notion of an impersonal Crown that developed simultaneously. The officers of Henry II held to distinguish administratively "between lands falling into the monarchy by feudal rights, and lands which were more properly the royal demesne of the king, or of the Crown." (Footnote 16)
Once again, it is tempting to view this early development of legal entities at once attaching to, and yet separate from, the person of the king, particularly in light of the advantages of the worldly "perpetuity" that resulted, simply in terms of an attempt to adjust existing concepts of authority to a more complex social and economic reality. But this view ignores the peculiarly medieval character of the problem, and thus, some of the necessary limitations upon its resolution. If the ultimate nature of authority was Heavenly and unchanging, it could not be concretely and systematically invoked in the interests of the secular state vis-à-vis a changing society. On the other hand, to the degree that the principal justification for royal acts of authority was said to derive from reason and the instrumentation of the Positive Law, the theoretical links to the unifying power and moral affirmation of Divine Sanction, and, consequently, the claim, derived in part from the theology of the period of Christ-centered kingship, of the secular ruler to a "more than earthly perpetuity," would be weakened. In other words, while the forces of faith began to require legal reconciliation with the forces of social and economic reality in the rising secular states, the augmented worldliness of king and subjects necessitated not merely any theoretical justification, but one that conformed to a general view of life still far removed from that of the Reformation and later, more purely scientific types of reasoning.
This problem of theoretical justification was finally met, though only after a long and complicated period of conceptual development, through the application of an analogy that enabled secular authority to maintain the advantages of Divine sanction while still increasing the flexibility of its powers.
It is not difficult to detect what made Christus and fiscus -- incomparable magnitudes to modern ears -- comparable to medieval jurists. The comparison hinged upon the inalienability of both ecclesiastical property and fiscal property. Alongside of the spiritual "dead hand" of the Church there had come into being, or into legal awareness, a secular “dead and" of the state: fisc. (Footnote 17)
One suspects that even solely within the context of medieval thought, an analogy between the "dead hand" of the State and the "dead hand" of the Church could not have been considered flawless. But the analogy, however true it was, was perhaps allowed to persist because it was not wholly inconvenient for the jurists to do so, and because even while it served to blur the conceptual relationship of the ruler to God and society, it enabled secular authority to "relocate" itself, if artificially, in a conceptual identity that was, in a new sense, neither entirely of one, nor the other.
Bracton [English jurist of the 12th century] fell in with the budding fiscal "theology" of his age. [He], to be sure, was remote from the subtle distinctions of the Bolognese who argued whether the fisc was identical with the people or with the ruler or with itself; nor did it occur to him to conceive of the fisc as a persona ficta although that concept was introduced in his days. And yet he came very close to the concept of a fictitious person when he used the technical term of nullius, stating that both the res sacrae and the res quasi sacrae were "property of none," bona nullius. That is, they are not property of a single person, but only property of God or the fisc. (Footnote 18)
Having thus provided certain formal justifications with regard to the changing character of the secular prince, the jurors were subsequently challenged to provide much the same sort of justification with regard to the ever-increasing relations between the prince and his subjects. During the high and later Middle Ages, a second shift in the general focus of worldly authority occurred -- a shift less, perhaps, in kind than in degree -- which Kantorowitz refers to as the transition from law-centered kingship to polity-centered kingship. For the theorists, the problem was again that of suitably articulating the shift in focus while still maintaining a strong connection with the Divine sanction of supernatural authority. It' s resolution was begun through another analogy between Church and State.
The Church as the supra-individual collective body of Christ, of which he was both the head and the husband found its exact parallel in the state as the supra-individual collective body of the Prince, of which he was both head and husband -- "The Prince is the head of the realm, and the realm the body of the Prince." In other words, the jurist transferred to the Prince and the state the most important social, organic, and corporational elements normally serving to explain the relations between Christ and Church... (Footnote 19)
Imagining the potential difficulties of application deriving from a full development of such an analogy, one might still be tempted, from a modern standpoint, to see this, as well as the earlier conceptual evolution, most significantly in terms of the adjustment of theory to a changing social, political, and economic reality. Using Kantorowitz's general categories, one might simply say that the medieval conceptual basis of worldly authority shifted from Christ to Law (law) to polity, thereby gradually increasing, through formal acknowledgment, the degree of "subjectivity" (reflecting what John P. Davis considers to be the beginnings of the orderly development of assertive individualism in the West) attaching to the lives of both ruler and ruled. This point of view, however, tends to diminish the significance of the concepts themselves in relation to medieval men's belief in an ultimate supernatural basis of authority. No matter how impractical their originally static view of the world -- focused in a tension between human nature and Divine Grace, and associated with an unchanging society -- was to become, its characteristic function of connecting Divine sanction with the earthly order remained fundamental to the life of the Middle Ages.
It is in light of the importance to medieval theory that it maintain its links to Divine sanction that one might discover a possible way of understanding the development of the concept of corporation during the Middle Ages, and, perhaps also, a most basic relationship between the idea of corporation and Western concepts of authority. For out of the transference of mystical authority from the body (corpus) of Christ to the secular powers of Prince and State developed the notion of a secular legal entity both impersonal and strangely passive in character. In conjunction with the more practically-based interpretations of the nature of such entities that attended economic and political expansion, and with some of the more constructive accomplishments of assertive individualism, that notion would eventually lead to the modern concept of corporation. In this sense, also, the static character of feudal social theory may be seen as just as important to the foundation of later corporate theory as the "theory-free" practices that Ullman shows as having evolved outside of it.
Another possible argument may be disposed of quickly: the state as a persona ficta, an abstract personification beyond its members. It is true, The Church was occasionally defined by Aquinas as a persona mystica. Would that questionable term entitle us to understand accordingly also the state as a persona politica et moralis? The term does not seem to occur; for the state, around 1300, was not a "fictitious person" but an organic or organological whole. It did not exist apart from its members, nor was the "state" some superior being per se beyond moral values and the Law. To put it simply, the regnum or patria was not “personified" -- it was "bodified.” Mainly because the state could be conceived of as a "body," could there be constructed the analogy with the mystical body of the Church. The parallel hinged, as it were, upon the word corpus, and not on the word persona, just as the theologians reflected on the duplex corpus Christi and not on the duplex persona Christi --... the terminology itself should prevent us from lightheartedly discarding the old organic oneness of head and limbs of the body politic and from rashly replacing it by the abstraction of a personified state. (Footnote 20)
It has been indicated that as the power and offices of the State developed, changes in the concept of authority occurred that helped to justify the perpetuation of its functions beyond the exigencies of unique events in the mortal lifetimes of individual rulers. As the focus of secular authority became more "polity-centered" after the 12th century, the need arose for a more generally applicable theoretical justification of worldly perpetuity that pertained not just to the personage of king and the central powers of the state, but could be extended to embrace society as a whole. Again, the problem lay in providing such justification in a way that was not entirely foreign to the static, medieval, Christian conceptions of the world. It' s resolution came through the reinterpretation, in Christian terms, of Aristotelian thought.
The revival of the Aristotelian "eternity of the world," which presupposed and resulted in the immortality of the genera and separate species, was therefore indeed a "secularization" of the angelic aevum: an infinite continuum of Time was, so to say, transferred from heaven to earth and recovered by man. It was the secularization of the Christian concept of continuity perhaps even more than the classical belief in circular motion of an infinite time,.... Public opinion quickly discarded this theorem implying a periodical reoccurrence of events and replaced the circular continuity by the conventional linear continuity characteristic of Christian thought in general -- and probably also of the angelic aevum. (Footnote 21)
Through the combined influence of separate strands of thought -- philosophical, juristic and scholastic -- the term universitas came to take on an increasing importance. Initially defined by the Roman legal glossators as "a conjunct or collection in one body of a plurality of persons," in various contexts that term was applied to the genus or species of man, to cities, to ecclesiastical collectives, to kingdoms, or to the world as a whole. In each case, the enhanced legal status implied by the application of the term was similar to that which had been implied by nullius tempus currit contra regem -- time didn't run against them, they could not die, but were, in a sense largely unfamiliar to the early medieval worldview, "immortal."
We now recognize the flaw in the purely organological concept of state which regarded "heads and limbs" mainly as they were represented at a given moment, but without projecting beyond the Now into Past and Future. The purely organological state became "corporate" only ad hoc; it was "quasi-corporate for some purposes of jurisdiction, taxation, and administration," or in a moment of national emergency and effervescing patriotism, but it was not corporate in the sense of that perpetual continuity characteristic of the universitas. (Footnote 22)
It is apparently in terms of just such a reorientation of thought that the complicated and difficult accommodation of "static" theory to a new and ever more dynamic reality may be seen. Conceptual links preserving the ordering, sanctioning properties of Heaven were supplied through a curious secularization of the Christian aevum, even while another important step had been taken towards recognition of the full legal status of corporate entities.
... between the generic communitas or universitas on one hand, and the individual and material community of Bologna composed of mutable citizens and perishable buildings on the other hand, there arose a third entity different from both, an entity which was immaterial and invariable, though not devoid of individuation, which existed (as it were) in some perpetual aevum, and which appropriately might have been called Bononitus or "Bolognity," had the lawyers not preferred to talk about the corporate universitas -- that is, the juristic person or personified community -- of Bologna. Nevertheless, that corporate, if incorporeal Bononitas represented, like the angels, species and individuation at the same time. (Footnote 23)
If one views these developments in light of the identification of the obedient feudal subjects with the law and government of the ruler, it provides another perspective from which the relationship between changes in the concept of the ruler and changes in the status of groups or feudal subjects might be understood. As the era of polity- centered kingship progressed, it would seem clear that the transference of what had earlier been exclusively "Heavenly" prerogatives to the secular ruler was to have its parallels in the transference, however complex and gradual, to the feudal subjects (as members of various corporate collectives) of legal rights and prerogatives previously considered, in theory if not in fact, to be the exclusive possession of the central powers. If the shifting social, economic and political realities necessitated the change from "Grace and Nature" to “Nature and Man" in the inner tension of the concept of authority, the peculiarly medieval analogical methods through which that change was affected, deriving from the need to maintain at each step of the connection between secular authority and mystical sanction, in turn found their "analogy" in the later theoretical justifications for the transference of purely secular state powers to groups of individuals within the realm. Without wishing either to oversimplify or confuse an admittedly complex and potentially confusing relationship between fact and theory, one might suggest that "authority" was in process of being twice transferred, first from Heaven to the secular head of state, and subsequently, if not to the same degree, from the secular head of state to the other members of society. That this dual transference was accomplished in significant measure through the development of the idea of corporateness reflects it' s key role not only in linking ecclesiastical and secular conceptions of authority, but also in reconciling medieval man’s static, "organic" view of society with his awakening sense of individuality.
To be sure, not the individual life was immortal; but immortal was the life of the genera and species which the mortal individual represented. Time now became the symbol of the eternal continuity and immortality of the great collective called the human race,.... It gained, through its connection with ideas of religious and scientific progress, an ethical value when one recognized that “the daughter of Time was Truth."... the unlimited continuity of the human race bestowed a new meaning on many things. It made meaningful, for example, the craving after worldly fame,... which increasingly became a decisive impulse for human actions.... one did not accept the infinite continuity of a "World without end," but accepted a quasi-infinite continuity; one did not believe in the uncreatedness of the world and its endlessness, but one began to act as though it were endless; one presupposed continuities where continuity had been neither noticed nor visualized before; and one was ready to modify, revise, and repress, though not to abandon, the traditional feelings about limitations in time and about the transitoriness of human institutions and actions.... One had not invented a new notion of Time, but accepted Time's other aspect. Only in so far as another aspect of Time -- it's continuity and practical infiniteness -- was emphasized... was there a change of man' sense of the nature of Time. (Footnote 24)
Thus, if one considers the conceptual changes that occurred during this period in terms of a reciprocal process in which established theory and its modification, the weight of tradition and the forces of transition, mutually informed each other, in its various formal applications the idea of corporateness served in the adjustment of static organic" medieval concepts of authority to an increasingly dynamic social, economic and political reality. While in actuality they lack both the immortality of Divinity, and the active subjectivity of real persons, the new juristic persons would, through this excessive replacement of their individual members over time, come to possess, in a legal sense, a measure of each.
While the nature of this conceptual development may be argued to have influenced, as well as simply reflected, significant changes in the complexion of medieval authority, it is not easy to effectively translate that influence, in and of itself, into fully practical guides to the sources and distribution of power within the rising medieval secular states. This difficulty, though stemming in part from the less than completely empirical medieval worldview, also results from the fact that, in an important sense, problems in the development of authority concepts were not purely medieval in character, i.e., involving a theoretical" rapprochement""of Heaven and earth. They could also be traced back to the discrepancy between political fact and political theory present during the earliest feudal period, a discrepancy deriving from the adoption of ancient Roman law by the Christian church.
The centralized, hierarchical, territorially extensive Roman system of government, and thus the Roman laws, had grown out of a political reality far removed from that of the following centuries. And while it has been suggested that the ecclesiastical reinterpretation of the substance of that system of laws ultimately helped to permit the adaptation of authority concepts to the complex social realities of the high and later Middle Ages, in practice it was clearly the application rather than the essence of the Roman principles of political organization that had been modified. With the rise of the new secular states that had, in turn, borrowed heavily from ecclesiastical theory, what resulted was the problem of adapting a Western European society that for centuries had been territorially fragmented and run largely by local custom to Roman laws deriving from the centralized, hierarchical, and territorially exclusive government of the ancient empire. In short, medieval theory was challenged, not only to "reconcile" Heaven with earth, but also defined formal justification for a diffusion of political power in terms of the system of law created by a society in which such a diffusion of political power had never existed. The more specific nature of the problem and the method of the solution by the medieval glossators is indicated by Von Gierke:
The glossators insist that the Roman Empire is the only state in the sense of the [Roman legal] sources. They claim the plenitude of power of the state only for the Emperor. This plenitude of power follows from his exclusive possession of the imperium conferred upon him by the populus Romanus. And wherever the senate and the people are mentioned as bearers of state rights, in addition to the Emperor, the glossators apply these passages literally to the Roman Senate and Roman people of their own day, and treat the urban community of medieval Rome as the privileged respublica Romana, and as the capital of the empire. In this view, there is no temporal sovereign but the Emperor, no real respublica but the respublica Romana. They regard all other holders of public authority, including kings and princes, as Roman magistrates with the derivative imperium; and their lands, as Roman provinces and city districts. Every self-contained commonalty -- vaguely defined as populus, as civitus, or as respublica -- gets into the framework of the Roman universitas, no matter whether it is compared, as in the monarchical constitution, to the universitas provinciae under the praeses provinciae, or, as in a republican constitution, to the Roman municipium. Nevertheless, the idea of a true disestablishment of the territorial and municipal corporate groups was not contained in the teaching of the glossators. No matter how much the glossators tried to enhance the imperial power, the medieval empire [Kaiserreich] was much too removed from a genuine and exclusive state to make it plausible for them to resuscitate, though only in theory, the Roman conception of public law concentrated in the sphere of one single will. And it was impossible to deny independent publicistic legal subjectivity to the more or less independent territories and municipalities, which contained the beginnings of the state structure to a far greater extent than was the case in the Reich,.... If the medieval lands and cities were to be regarded as provinces and municipal towns of the Roman law, the compelling nature of these facts forced an expansion of these concepts that was alien to the sources. This occurred in such a way that all fundamental concepts of the Roman law of state were unconsciously assimilated by the glossators to the medieval point of view. Roman offices came to be regarded as official prerogatives, jurisdiction as privileges, the imperium merum and mixum and the jurisdictio as patrimonial or feudal property of their owners. [Me -- grants?] The conception according to which public power was an object of acquired rights was thus brought into the sources. The association [engere Verbaende] or their heads obtained many publicistic power rights that could be traced to enfeoffment of the superior power, but which were thought of as independently acquired subjective rights even with regard to the grantor of the fief. Indeed, the internal corporate rights were regarded as original attributes of the entity of every corporate group. The universitas thus became a self-contained body; it's very concept held the quintessence of a public community [oeffentliches Gemeinwesen], and it was capable of absorbing all the constituents of the state. (Footnote 25)
It is understandable that the medieval glossators were unable to consistently fit the Roman legal sources to the political and economic realities of their own time. Even while the Roman laws provided a basis for the reintroduction of the concept of unified, secular, territorially extensive government, the medieval states possessed nothing like the political hegemony that had characterized the ancient Roman Empire. The transition from Christ-centered to Law (law)-centered and polity-centered government brought with it the necessity of developing an effective legal response to the discrepancies between political theory and political reality that had grown, rather than diminished, over the course of seven centuries. The "split personality" of feudal authority -- unitary in theory, diffuse in actuality -- now called for a legal accounting, and the conceptual hybrid that emerged as a result was finally true to neither one nor the other:
... they [the glossators] were then confronted with an even more ponderous question concerning the relationship of the totality as a unity to the totality as a multiplicity.... They did not reach an unequivocal decision on this cardinal question. The text of the sources has drawn them to the Roman conception, which held the universitas as a unitary legal subject to be an artificial "individual" quite distinct from the totality of its members. But the glossators were far from expressing and pursuing such a conception. They were much more profoundly influenced by the Germanic view holding the unity as a group-person, which is immanent to organized commonalty, to be elevated above the individual persons. But they were unable to come out with the legal explication and clarification of this view. They remain prisoners of the then-prevalent sensory-concrete way of thinking, which views the totality as a multiplicity with the dispersed unity. This accounts for the fact that they put forth many mutually contradictory statements that were to perplex even their own successors in a later period. (Footnote 26)
However incomplete and contradictory the work of the glossators may have been, it nevertheless reflects a not-unsuccessful attempt to bring theory into a closer correspondence with fact. For if the interpretations by which the universitas as a collective unity was elevated to the status of a legal subject were inconsistent in their disposition toward the earlier sources of law, that inconsistency had its counterpart in the social and political inconsistencies of the period in which it developed. Needed was an explication in law of the general tension between subjective legal status and objective legal authority, or, more specifically, of the tension between the centralized powers of the state and the diffuse powers of the various autonomous social, political and economic groups within the state. The fact that the glossators stopped short of the final step in building a foundation for corporate legal subjectivity by failing to apply the concept of personality to the universitas is less important here than the fact that, by affirming the influence of both the Roman and Germanic ideas of corporation, their interpretations served to uphold the power and authority of the central state even while recognizing the independent acquisition of subjective rights by entities other than the state.
It has been tentatively suggested that the concept of corporation was vital to the beginnings of the secularization of royal authority in so far as it provided a way, within the context of medieval thought, for concepts of secular authority to maintain their link, through analogy, to the conceptual universe of the Christocentric era and, thus, to Divine sanction. Similarly, it is suggested that the legal equivocations by which the universitas was held to be invested with particularistic corporate status but nevertheless associated broadly and derived directly from the authority of the state ( . . . the glossators posit above all the requirement of recognition by the state." Footnote 26), may be seen to reflect the way in which a concept of corporation would play a parallel role in enabling particularistic and diverse economic and political interests to achieve subjective legal status while still retaining their identifying and, thus, sanctioning links to the central authority of the state.
It would seem possible to view the evolution of the medieval concept of authority, not only in terms of the adaptation of society to changing economic conditions, but also as a process through which new concepts successively maintained, by analogy, their links to the sanctioning powers of the concepts that preceded them. Questions concerning the logical validity and philosophical implications of the process, and the degree to which it demonstrates the adaptation of theory to practical needs, while important, are less significant here than that 1) the process reflects a continued effort on the part of medieval theorists to maintain the integrity, as well as the relevance, of their concepts of authority by supporting new practices through the development of theoretical modifications not wholly removed from the beliefs and principles of the past, and thus 2) as outlined the process suggests the important part those beliefs played in the transubstantiation of language and ideas used to justify the secularization of authority.
If, then, the medieval legal foundations of the concept of "corporate" authority were incomplete and inconsistent, it would be perhaps less than entirely to the point to say this only reflected the undeveloped and inconsistent nature of the society from which they emerged. It would seem equally true to say that it was ultimately to be in the best interests of the preservation and continuation of secular authority in the West that the theorists had left those inconsistencies unresolved in law. The inability of the glossators to construct from various sources a complete, consistent, and static model of society foreshadowed a complex era of economic and territorial expansion in which the medieval view of the world would become increasingly outmoded and as the general economic conditions of growth and expansion continued, the seemingly contradictory concepts of authority -- on one hand acknowledging the centralized powers of the multitude of social, economic and political groups (and ultimately, individuals), and on the other hand upholding the centralized power of the state -- would nonetheless come to prove workable in practical terms.
It is, perhaps, a question of political or intellectual viewpoint to what extent one believes that the problems left unresolved by medieval theory remain unresolved. Nevertheless, to the extent that modern theorists find themselves challenged to better or more fully resolve the problems inherent to the Western concept of authority, it seems clear that solutions must begin as much from an accurate understanding of the effects of both the material and ideational influences that conditioned the early development of that concept, as from the conviction that any need for answers to contemporary problems of authority, whether moral or structural or both, might best be served by the application of uniquely modern perspectives.
The second part of this paper, originally proposed at its outset, has not yet been finished, but could be said to still be in the works, in the form of the language book I am still writing. The all-important shift in our history from Christ-centered to secular concepts of authority resulted not only from events, but in deeply important ways in transmogrifications of the language used to describe that authority. Strong connections between ideology, belief, emotion, and language helped to turn bands of angels into boards of corporations and supposedly eternal royal dynasties into infinitely renewable corporate entities, in the hearts and minds of their constituents. Hopefully, a better understanding of the hows and whys of this transformation will help shed light on many still-unanswered questions.
The notes and bibliography for this work have unfortunately been lost. A link to the main reference used in its creation, "The King's Two Bodies," can be found in the bibliographical section of this website. In the text and bibliography of that book, can be found reproduction of and leads to enough of the original source material for the remaining footnotes to satisfy, I think, any avidly interested, fastidious reader. In addition, formatting limitations have led to the omission of some key italizations from the original, making what is already a complex read in some cases a bit more difficult to apprehend. For this I apologize, but hope that the main points will still come across clearly enough.
By Lee Strauss (Copyright@2019)