COMPARATIVE PUBLIC LAW

1
COMPARATIVE PUBLIC LAW

• Lesson II October 8th, 2008
• The Birth of Modern State

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Introduction

• Concerned period 476 A.D. (Fall of the Western
  Roman Empire) Late Middleage (XI Cent.)
• Main Characters
• 1) Lack of borders ?Absence of the Territory
  (under a modern perspective)
• 2) Absence of the so called Public Power
• 3) Law under a Personality Princip perspective

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• Barbarian invasions into the Roman Empire
  territory ?Organization of power on military
  basis
• Nobilitation of military heads
• External and internal defense
• Expectations by the Catholic Church and the
  Charlemagne (Year 800)
• Frustrated Expectations
• Their universalist calling resists

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Coronation of Charlemagne

• Rome, Christmas Year 800
• Imperator Romanorum crowned by Pope Leone III as
  protector of the Church
• Therefore leader of the others European princes
• Defender od the order and peace against the
  heathens

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• Fall of the Empire of Charlemagne ?Conquered by
  the German kings (962)
• Obligated to go to Rome in order to be nominated
  Emperor by the Pope
• Double legitimation of the Emperor temporal and
  spiritual
• Last source of legitimation the Catholic Church

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Characteristics of the Middle Age King

• Lack of so called sovereign powers
• Regnum Sum (not synthesis) of the will of the
  single persons
• King Bigger Landlord than the others
• Patrimonial-privatistic Reign (opposed to the
  modern political-pubblicistic one)
• Birth of the feudal boundaries

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Organisation of pover

• Division of power between King and Landlords
  based on land and population
• Personal power institutes connected to the
  development of a big empire
• Tight connection between State and Church,
  without clearing the nature of relationships
  between temporal and spiritual power

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Personality Principle Law

• Regulation of legal relationships according to
  the law in force in the countries of the
  concerned subjects
• Confusion of the legal sources
• Applied standard until the achievement of the
  Territory Princip Law and the Citizenship idea
• Fundament of the birth of the different legal
  traditions

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The creation of State

• Between XII and XV centuries concentration of
  public power
• Modification of its nature
• De-personalisation and objectivation of the
  feudal boundaries
• Process ruled by customary sources
• Rediscovery of the Justinian Code
• Roman Law universal Ius commune, connceted with
  Ius proprium (local and specific)
• Birth of legal systems caused by power conflicts

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Centralization of the Church

• Appointment of bishops
• Gregorio VII exclusive power of investiture
• Struggle against the Empire ?Concordate of Worms
  (1122)
• United renuciation to an exclusive appointment
  competence
• Growth of different legal orders, both with
  universal expectations

Gregorio VII (1020/1025-1085)
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Selfgovernment of the Italian Towns

• Pre-bourgeoisie in the municipalities
  selfgovernment against the local feudal Landlords
• Attempt of legal control by the Empire ?strong
  legal and political fight
• Bartolo the towns already against external
  superior authorities
• Marsilio of Padua support to the towns against
  the Pope?separation between temporal and
  spiritual power

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Evolution of the Kings Role

• In the European reigns of the time (1100-1200)
  the Kings regularly call Landlords and other
  (religious and political) personalities
• Assemblies without representative or deliberative
  powers
• England Parliament is the place for the call of
  the Kings Council, but with its own competences
• Magna Charta (1215) acknowledgment of specific
  powers to Landlords and Church?Taxes legitimated
  only by the consense of Parliament
• No taxation without representation
• Settlement of the Parliaments call procedure

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England

• XV century Parliament composed by a House of
  Lord (high upper class) and House of Commons
  (representing bourroughs and cities, joint by
  lower aristocracy)
• Parliamentary aprovation of taxes is binding
• Difference between Gubernaculum (governance, with
  absolute indipendence of the King) and
  Jurisdictio (Justice, where the law is binding
  judges even if against the Kings opinion)

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Gubernaculum and Jurisdictio
Gubernaculum
Jurisdictio
Governance (Rex legibus solutus)
King restrained by the Judges (according to the
law)
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Sign of the Magna Charta Libertatum
1215 King John signs the Magna Charta
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The Magna Charta
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Evolution of the Personal Principle Law

• Middle age law lead by the several status of a
  single person (family, professional, territorial
  boundaries)
• Birth of the Lex Mercatoria (transnational)
• Mixed legal order Romanlaw (Ius Commune) and
  local/professional law (Ius proprium) lack of
  individual dimension in the legal concepts
• English unification 1066
• Success of the Common Law in England
• Main characters unifying function without
  support of the Roman law Stare Decisis
  Necessity of a Writ issued by the King

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The Absolute State (XVI-XVIII cent.)

• Before the Absolute State
• 1) policentric legal order
• 2) localized organization of power
• Continuity/discontinuity with the past

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Struggles between State and overnational subjects

• Different consequences in the several national
  contests
• 1) France absolute monarchy
• 2) England looking for the Parliaments Support
  by the Tudors (foundation of the Anglican Church,
  1533)
• 3) Spain Catholic Kings?Attempt of new
  empire, not only spiritual but also political

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The Battle of the Channel (1588)
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Consequences of the English victory

• Final achievement of the modern State against
  attempts of restoration of imperial models
• Independence of the national State ?support to
  the cenralization of power
• Following de-personalisation of the State
  distinguished by the Kings person
• From the patrimonial-privatistic to the
  political-pubblicistic perspective

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Peace of Westphalia (1648)
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State Sovereignty Theory

• Political-philosophical legitimation of State
  Sovereignty Theory
• 1) Thomas Hobbes

• Need of safety in times of religion wars
• Legitimation conditions of the sovereign State
• Agreement betwen citizens looking for safety and
  Sovereign (Monarch or Parliament) gaining
  absolute power on them
• Contractualistic fundament of political power
  (crucial for following constitutional experiences)

Leviathan (1651)
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State Sovereignty Theory

• Political-philosophical legitimation of State
  Sovereignty Theory
• 2) Jean Bodin

• Sovereignty as power to issue laws without
  superiors (reviving the Superiorem non
  recognoscens principle).
• Limits to the Sovereign Gods and Natures Laws,
  human laws common to all peoples, laws on the
  Reigns organization
• Fundament for the divine origin of sovereign
  power
• Difference between Absolute and Dispotic State
• Exclusive ownership of legislative power as
  sovereigntys most direct expression
  (indivisible)
• Separation between possessing and practicing
  sovereignty

Jean Bodin (1530 1596)
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State Sovereignty Theory

• Political-philosophical legitimation of State
  Sovereignty Theory
• 3) Johannes Althusius

• Different composition of political unity
  (inspired by Swiss Confederation and Dutch
  Provinces)
• Political Unity Result of gradual association
  of different level communities (families,
  villages, towns, provinces, states, empire)
• Boundary based on agreement regulating aims and
  advantages for all involved communities
• State Sovereignty limited by specifc laws of the
  inferior communities
• Functional for the Federal State Theory

Johannes Althusius (1563-1638)
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Territorialization of Law

• Territorialization of Law introducted by
  Absolute State
• Overrule of the Law Personal Dimension
• Consequence of the States monopoly of political
  power on his own territory
• Definition od political space?uniforming
  behaviours on a certain territory
• Development of Citizenship?attempt to uniform
  and control Citizens behaviours
• Resistance against power monopoly (through local
  law)
• Inclusive function of this model the more
  individual become citizens, the more stable is
  the State organization
• Middle Class growth requests citizens political
  equality (but admits economic disequality)