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Medieval Representative Institutions and Canon Law in Western Civilization

Leonard P. Liggio


Krakow, Poland

October 12-14, 2003

I spent four years in the Ph. D. seminar of Professor Oskar Halecki at Fordham University, The Bronx, New York. It was the graduate seminar in the History of International Relations and Eastern Central European Diplomatic History.

Halecki was educated in Vienna; attended the pre-WWI Jagiellonian University of Krakow. He served as secretary of the Polish delegation to the Versailles Conference in 1919, and continued in the delegation to the League of Nations. This was the time of Achille Ratti, Apostolic Visitor to Poland (1918), and then first Papal Nuncio to Poland (until 1921 when he became cardinal archbishop of Milan and elected pope, as Pius XI in February, 1922), of Waldimir Ledochowski S. J., General of the Jesuits from 1915 to 1942, and of Archbishop Adam Sapieha. Herbert Hoover’s Relief Commission extended its food work to Poland in 1918, and Hoover’s close colleague, Hugh Gibson, was appointed first US envoy to Poland in April, 1919.(George J. Lerski, editor, Herbert Hoover and Poland, Stanford, California,Hoover Institution  Press, 1977.)

Halecki was dean of the University of Warsaw. In 1939 Oskar Haleck was teaching at the University of Grenoble and was appointed History Professor at Laval University in Quebec. In 1944 he was appointed professor at a premier Jesuit University,  Fordham University, now graced by Cardinal Avery Dulles.

In the Fordham Graduate School building was located the Lublin Room, dedicated as the faculty commons room after 1939 and continued during the Communist oppression. He dealt widely with Polish History but had a strong interest in the Union of Florence (1439) and the Union with Eastern-Rite Catholics in 1596 which brought together in the Catholic Church Christians of the Latin and Eastern rites.

He was interested in the federalism of the Polish-Lithuanian Commonwealth and the constitutionalism of the Polish Republic. Halecki’s experience in 20th century international relations led me to write my M. A. thesis on: “The Austro-Polish Solution to the Polish Question during the First World War.” Then Halecki was retiring and I organized the farewell dinner of his Fordham University students teaching in various universities.

Let us think back to the 18th Century.  Princeton Historian Robert R. Palmer has noted that it was the period at which three striving new empires were created at the expense of older empires. Bradenburg/Prussia, Austria and Russia eat up the historic empires of the Holy Roman Empire, the Polish-Lithuanian Commonwealth and the Ottoman Empire. Poland was the center of these conflicts. In the 1730’s the War of Polish Succession was ended when the last Medici Grand Duke of Tuscany died, leaving a vacancy to move the husband of Austrian Empress Maria Theresa, Duke Francis of Lorraine, to Tuscany and give the duchy of Lorraine to Stanislas Leszczynski, exiled King of Poland, and father of Queen Maria Leszczynska wife of King Louis XV of France.

The Seven Years War (1756-1763) brought European events strongly to the eyes of the American colonists. The American newspapers reprinted the European news from London newspapers. As the war brought British interference with American exports through neutral ports, Americans observed the growth of government oppression or taxation in other European countries. For example, the coup of Swedish king Gustav III creating Absolutism and ending the history of parliamentary control of the government made a great imprint on American thinking. Similarly, foreign interventions in the meetings of the Polish diet were noted, as well as the election as Polish king through Empress Catherine the Great’s influence of former envoy to St. Petersburg, Stanislas II Poniatowski (1764-95), nephew of the Czartoryski family.

The Americans followed the exploits of the Confederation of Bar (1768-72) when the gentry maintained a constitutional struggle against Russian influence in the Polish diet.  Led by Count Joseph Pulaski, it included several people later noted in the American revolution: the son of the leader, Casimir Pulaski, Tadeusz Kosciuszko, and Charles Lee, an English officer who brought his military tactics from the Steppes to America in the Revolutionary War.

The Confederation of Bar was entangled in a Russo-Turkish War. It was a stalemate, ended by the First Partition of Poland (1772) compensating Russia and the Russo-Turkish Treaty of Kuckuk Kainarji (1774) in which Russia received tutelage of the Crimean Tartars and of the Orthodox Christians of the Ottoman Empire.

Edmund Burke, in the English parliament, not only defended the liberties of the British in North American colonies, but referred to the constitutional events in the Polish-Lithuanian Commonwealth as another struggle for liberty in the face of tyranny. Burke saw the Polish struggles as another example of the American Revolution’s basis in Whig Liberty and Christianity.

The Polish Constitution of 1791 raised for English and American Liberals the question of illiberal democracy. Fareed Zakaria has written deeply on the issue that democracy itself is only a valuable instrument, but it is not an end in itself. A constitution must create the framework, and especially the limits on the executive, legislature and judiciary. Their powers are in no way absolute, rather they are strictly limited, they are very limited, they are always limited.

Majorities cannot rule against minorities; majorities cannot vote what is wrong to make it right. Majorities can only act on a few and limited things. It is the natural law and natural rights which are paramount; and legislatures and executives are the servants submissive to natural law and natural rights.

This is the basic thinking of Western Civilization. Where does it come from?

We can go back to Sophocles and the call to the higher law which is above the edicts of the rulers; the custom of family obligation precedes the orders of the city. When one is in the Vatican in the Bishops’ Synod  Hall we find there are twelve paintings on the walls of this almost thousand year old hall. Six are Church Fathers, and six are classical philosophers. Several of these are Stoics.

The medieval church saw the natural philosophers as equal to the supernatural philosophers in searching for truth. The Stoics built on Aristotle’s explorations of the rights of the individual against the polis. The Stoics understood the fallacy of the limits of the polis mentality that only persons from the same city were The Stoics understood that every human being shares the same nature and the same dignity, that All Mankind Is One. Instead of the limitations of the polis, the Stoics proclaimed the universality of human nature in the World City, the Cosmopolis. As portrayed in the Vatican Bishops’ Synod Hall, Western Christianity wishes to learn and expand the learning from the pre-Christian classical philosophers. Early Church Fathers developed the ideas of the Stoics and other schools making these ideas central to Christianity.

The Romans were stern and prudent people. They had a legal system which was more primitive, and difficult, than most. They knew it was harsh, but Romans said it was what made them strong and prudent. They did not believe that the Eastern Mediterranean economies, which were so much richer and more developed than Rome, should be burdened by the primitive, rural Roman law. Romans created a special judge or praetor peregrinius for travelers to Rome, the merchants.

To select a legal system for the merchants coming to Rome the juris consuls advising the praetors followed Stoic ideas. They believed that there was an original golden age in which the natural law was understood; but mankind suffered a continuing decline, dividing into different cultures, until now in the base iron age each culture has only some small particle of the original natural law. The praetor would look to the competing legal concepts from all the Eastern cultures and look for a concept which give the most efficiency and prosperity to economic relations and that would be judged to be a small remains from the original natural law from that country. The Roman praetors took from all the concepts of these peoples the most efficient solutions to legal issues and created the Jus Gentium for commercial  cases. The Law of The Peoples or Law of Nature for commercial transactions has been a foundation for Western legal systems for more than two thousand years.

The resignation of the last Roman Emperor of the West (476 AD) surrounded by the German tribes and rulers who had moved west to escape the Huns created a Europe with German laws and Roman laws. But, the Germans were not commercial so that commercial law of the Jus Gentium was the basis of early European law. These commercial legal concepts were the basis of the European Law Merchant. (This preceded the time of Justinian (527-565) and his code of the Eastern Roman empire which had no rule in Western Europe.)

Western Christianity has been leader of Reform movements during its history. It is related to Western Christianities Idea of Progress well explained by Robert Nisbet. I studied Catholic Reform Movements with my Fordham University professors, Gerhart Ladner and Jeremiah O’Sullivan. See Gerhart Ladner’s The Idea of Reform among the Early Church Fathers  (Harvard University Press, 1959). Often Reform movements started with monastic reform.

One of the greatest Reform movements is associated with the Abbey of Cluny founded in 910 AD north of Lyon. Hundreds of Benedictine monasteries in Europe sought new abbots from among the monks of Cluny to reform their monasteries.

The decline was part of a general Carolingian decline in which the barons and knights were looting the neighboring people. The Cluniac-inspired abbots and monks formed the local peasants into sworn associations under the patronage of the local saint to confront the barons and knights. By sworn numbers, by authority of the abbot, by the sanctity of the patron saint, the political leaders were led to swear an oath to foreswear their looting practices. This Peace of God Movement required the political leaders to swear not to injure the peasants,  the religious men and women, the Jews and the merchants, or their animals or property. The Cluniac abbots also led the Truce of God Movement requiring an oath not to engage in warfare on the days of the week solemnized by the Passion, Death and Resurrection of Jesus – Wednesday night to Monday morning of every week; and the Holy Seasons of Advent and Lent; and the octaves of major Feasts.

This led to an Agricultural Revolution (often spearheaded by monasteries) and that led to the Commercial Revolution of the Eleventh Century. The important point is the institutionalization of sworn associations; oath-taking was the bedrock of medieval legal systems.

The development of investment in agriculture and manufactures, with the help of many inventions, including water mills and wind mills, led to the resettlement in towns and the Commercial Revolution of the Eleventh Century. The commercial revival of towns soon led to the development of cathedral schools into universities.

The decline of institutions that led the Cluniac movement to the Peace of God and the Truce of God based on the reform of the Benedictine monasteries led to the reform of the secular church institutions – papacy, episcopacy and priesthood.

This reform was rooted in Cluny and the Abbey of Gorce in Lorraine. They collected papal and episcopal edicts and sent copies of collections around Europe. The desire to reform the papacy led to the institution of the college of cardinals for the election of the pope. The reforming papacy sought to use the collections of decrees as a stage in the formation of canon law. (Cf. Harold Berman, Law and Revolution (Cambridge, MA, Harvard University Press, 1983.)

Due to the less developed economy of Europe compared to the Byzantine world, clergy were given pieces of land for their financial support. Sometimes this was more profitable than ordinary persons’ incomes and very desirable. Many people sought clerical status not because of any religious motivation but to gain profitable positions requiring the priesthood. Often important families saw these positions as profitable positions for younger sons. Such clergy did not accept the bounds of chastity. Frequently the clergy had common law wives, an especially damning condition in the eyes of the monks.

The source of this behavior was the power of the political powers on the local or wider levels to select the pastors and bishops. The influence of Cluny and Gorce led during the second half of the Eleventh Century to the Gregorian Revolution.

Hildebrand, later Pope Gregory VII (1020-1085, pope 1073-1085), was one of the new college of cardinals who led the dynamic reform to wrest the appointment of clerics from the hands of the political powers. The development of canon law was a major instrument in this struggle against the political powers, in particular the Holy Roman Emperor. The conflict produced the first political pamphlets, the writings of various monks, bishops, cardinals and popes on both sides of the controversy. These are the Libelli de Lite (three volumes in the Monumenta Historica Germanica). Also see the Letters of Gregory VII. They contain some of the first statements of modern political thought of representative institutions and popular foundation for government.

Alongside we have the continual emergence of canon law which provides many important innovations such as protection of pastors from the power of the bishops, the protection of the canons of cathedrals from the bishops, the protection of bishops from canons of cathedrals, protections of higher and lower orders of clergy from deacons down from superiors. Law teaching emerged in Bologna in the Twelfth Century and is associated with a Camaldolese monk of the monastery of Sts. Felix and Nabor, Gratian.

Gratian’s Decretum includes an emphasis on and details about monastic rules (new monastic orders arose in the late Eleventh Century). His work includes material from the Second Lateran Council (1139) and so is dated 1140. Gratian, The Treatise on Laws (trans. by Augusine Thompson, O. P.) with The Ordinary Gloss (trans. by James Gordley) (Studies in Medieval and Early Modern Canon Law) Washington, D. C., Catholic University of America Press, 1993.

Canon law draws on concepts for the Jus Gentium and practices of the Roman Republic. it introduces the role of equity; in England, the chancery court introduces equity to mitigate the severity of common law. The English Chancellors are all churchmen (bishops) down to Cardinal Thomas Wolsey’s (1475-1530) successor, Sir Thomas More (1478-1535).

Canon Law introduced the concept of intentionality in the law. Earlier law was tort law; if a person injured a person or property, there was as stated fine to be paid. Canon Law introduced intentionality which might mitigate or increase the severity of the punishment. All legal thought in succeeding centuries was based on canon law.

Consequently we have a multitude of writings from the Gregorian Revolution dealing with the political institutions – Anslem of Canterbury, Thomas a Becket and his assistant John of Salisbury, the commentators on the Sentences of Peter Lombard to Thomas Aquinas and John of Paris and after. There is the emergence of institutions of representation, not only of the great lords, but of the lesser lords and the country squires and borough councilors. At the time of Magna Carta (1215) there is the founding of the Mendicant Orders to serve the towns people not served by Benedictine monasticism. The Order of Preachers of St. Dominic developed a rule of governance by election to successive councils. Sir Ernest Baker, the renowned Oxford scholars a century ago situated the origins of the House of Commons and other representative institutions in the representative system of the Rule of St. Dominic. Of course, St. Thomas Aquinas, ‘the Dumb Ox of Sicily,’ was influenced by his Dominican rule, in his political thinking.

From the kidnapping of Pope Boniface VIII by French king Philip the Fair, the Church suffered the Babylonian Captivity of the Fourteenth Century in Avignon. Attempting to resolve the situation led to the calling of General Councils of the Church and the concept of Conciliarism or representation of bishops in the governance of the Church. Again, much pamphlet literature emerged with discussion of representation which influenced secular thinking.

The Sixteenth Century saw a great retreat from medieval representative institutions and the rule of law to Absolutism. In Germany, Spain, and then in France, the historical, Catholic representative institutions were cast aside by Absolutist Catholic monarchies. Catholic countries no longer retained medieval institutions. But, rulers in England, Netherlands, even Switzerland, and Poland could not achieved their desired end of terminating medieval legal institutions. The rulers were forced to keep the medieval institutions by the pressure of the power of local institutions. Some of these countries’ rulers had introduced the Protestant Reformation as a means to consolidate their power, but mainly achieve the despoiling of the properties of monasteries and clergy.

Medieval legal and representative institutions not only survived but prospered in these Protestant countries. Until recently the Anglican church remained medieval.

The countries which prospered in the recent centuries were those who were not able to discard the medieval legal and representative institutions, while countries which remained less developed had suppressed their medieval legal and representative institutions while adhering to a Catholic Church under the control of the ruler.

Representation expanded in England and France in the Sixteenth Century in consequence of Protestant and Catholic Reformations, accompanied by much pamphlet literature, now more dispersed as a result of printing. Spain and Germany early lost their representative institutions. While England’s continued to grow, France suffered a check when Cardinal Richelieu and his successors did not call into session the Estates General from 1614 to 1789.

England’s representative institutions and its legal system, still influenced by canon law despite the Act of Supremacy of the Tudor monarchy, (Anglican Church kept the canon law) expanded while the continent lost them.

Poland’s republican institutions of the Eighteenth Century were well known and well studied by the American founding fathers. They studied all the ancient and modern republics in order to better understand what would work and what did not work.

Thomas Jefferson was well informed about Polish constitutionalism through Fillipo Mazzei who had migrated to Monticello. Jefferson, when he was governor of Virginia, sent Mazzei to Paris as his representative, after France had recognized American independence. When Jefferson went to Paris as American minister, Mazzei was appointed by King Stanislas Poniatowski as Polish representative in Paris.

From the Confederation of Bar (1768) until the Polish Constitution of 1791, Poland experienced a large output of constitutional writing. Some of this literature was widely discussed in France and came to the attention of Thomas Jefferson in Paris. John Adams, who had been in Paris until Jefferson arrived, became American minister in London and was writing his three volume Defense of the Constitutions of the United States in which the Polish Republic was discussed. As the dead American general Casimir Pulaski would have felt, the torch of liberty was passed from the momentarily extinguished Polish Republic to the new American Republic.

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