Wikipedia

Lex animata

Lex animata is a 12th century Latin translation of the Greco-Roman concept νόμος ἔμψυχος, nómos émpsychos, which equates to the "living law".

Originating in Hellenistic philosophy and repurposed by Themistius in the 4th century, the identification of the Roman sovereign as nomos empsychos was established in law by the emperor Justinian I in his Novellae Constitutiones, and introduced into European civil law through the discovery of The Authenticum by the medieval glossators in Bologna.

It would be a concept that would influence medieval ideas and shape early modern political thought about the state.

History

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Accursius (c. 1182 – 1263) contributed to establishing the doctrine of lex animata in medieval law.

4th century BCE to 1st century CE

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Mostly known as a Platonic idea of the philosopher acting as founding lawgiver to the politeia,[1][2] Nómos émpsychos is not a general idea of rulership that was universally agreed on.[3] The genesis of the idea is identified as coming from three philosophers, found in six locations of 4 distinct works.[4] This includes the philosophers of Archytas of Tarentum, pseudo-Diotogenes, and Philo of Alexandria, deduced from the Protagoras (dialogue), the Anonymus Iamblichi, Thucydides, Antiphon, and the Gorgias's Callicles and the Republic's Thrasymachus and Glaucon.[5] Archytas, a contemporary of Plato, is likely the origin, due to or related to a debate Archytas's had with Polyarchus about the nature of pleasure and its relationship to politics.[6]

Archytas identifies two types of law: there is ἔμψυχος ("animate") law, which is "king," and ἄψυχος ("inanimate") law, which is written. He does not explain what animate law to be a king means, but it was commonplace then to formulate law as a king (such as unwritten law, like the norms of society); whereas contemporary philosophers like Xenophone describe a wise ruler and in Nicomachean Ethics, Aristotle describes the judge to whom disputants appeal as "justice animate, as it were", also interpreted as a "living justice" (δίκαιον ἔμψυχον, díkaion émpsychon).[7][8]

The pseudo-Diotogenes version, now regarded as a pseudo-Pythagorean work, contrasts to Archytas' philosophy that kings are bound to laws and instead views kings holding unaccountable power due to their godlike status and being livings laws themselves.[9] Philo's variant attributes the notion to people not strictly defined as kings such as the Jewish prophets.[10]

2nd to 8th century CE

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The first surviving use of the form nomos empsychos is found in a pseudo-Pythagorean work, attributed to Archytas but probably dated after 50 BC.[11][3]

Themistius appears to be the first to use it to describe the emperors supremacy over the law, using it with regards to the Emperors Jovian (r. 363–364), Valens (r. 364–378), and Theodosius (r. 379–395), and this could be seen to be an expression of the imperial court's ideology[3][12][13] However, this is not that different from the past as a distinguishing feature that formed the Roman Empire under Augustus, was the role of emperor as supreme judge, where "the emperor was simultaneously above the law, within the law, and the law itself"[14]

It would later be codified by Justinan and rediscovered in western Europe with the Authenticum, with the Latin rendering of the concept as Lex Animata.[15][16] The concept had gained wide currency by late antiquity.[11] Justinian's formulation, compiled by Tribonian,[17] runs:

The Emperor, however, is not subject to the rules which We have just formulated, for God has made the laws themselves subject to his control by giving him to men as an incarnate law [nomos empsychos]. (Novellae 105.2)[18]

12th century CE and onwards

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In the Middle Ages, the glossators of the 12th and 13th centuries, notably Accursius, applied the concept of lex animata to the Holy Roman emperor.[19] Accursius rendered the principle in the Code of Justinian as princeps est lex animata in terris ("the prince is the law animate on earth"), and argued that all holders of ordinary jurisdiction over particular geographical areas derived their right from the emperor as living law.[20]

The term was also used of the pope by hierocratic writers,[21] and it was ultimately extended to individual kings, as the French jurist Barthélemy de Chasseneuz did in the case of the king of France in his 1529 Catalogus gloriae mundi.[22] The 14th century Italian jurist Baldus de Ubaldis wrote, "Rex est lex animata ... Ego dormio et cor meum, id est, Rex meus, vigilat" ("The king is the law animate ... I sleep and my heart, that is, my king, keeps watch"),[23] and in his 1598 The True Law of Free Monarchies, James VI of Scotland also referred to the concept when he affirmed "the old definition ... which makes the King to be a speaking law and the law a dumb King".[24]

The concept of the king as lex animata faced resistance in medieval English law, however. When Parliament ratified the deposition of Richard II in 1399, it listed as one reason the fact that Richard had believed "that the laws were in his own mouth".[25] Despite paralleling Byzantine political ideas in other respects, Islamic philosophy also departed from the notion of nomos empsychos by conceiving the caliphs as administering the sharia established by Muhammad rather than as lawgivers in their own right.[26] The idea of the lex animata was later deconstructed more systematically by Montesquieu and other constitutional thinkers of the Enlightenment, with Montesquieu pronouncing that iudex est lex loquens: "the judge", not the king, "is the law speaking", and the judge is not animate, but "inanimate", deriving rather than inventing the law.[27]

Impact

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It would come to serve as one of the foundations of later civil law in the West.[17][28]

In historiography, it's used to distinguish emperors from the principate and the dominate.[29]

Along with the church's independence by Constantine, it would shape early modern political thought.[30][31][32] This includes the concepts of the sovereign, the judiciary, the state, the separation of powers, and likely permeated all ideas in the medieval and early modern political and legal thinking.[33]

According to Kenneth Dyson (2009, p. vii),[34]

"[t]he tradition to which it alludes emphasises the autonomy, distinctiveness and normative character of public power. It attributes action in the service of this power to a fictional person and deliberative agent – the state – in ways that recall Thomas Hobbes, Samuel Pufendorf, and Christian Wolff. The classic state tradition serves to depersonalise public power in a dual sense, seeing it as distinct from both ruler and ruled."

Modern usage

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The idea of lex animata is sometimes used in modern political debate, usually to scorn an opponent for being too self-important or delusional about his insights into the law and constitutional affairs. In judicial circles it is sometimes used in jest, recognising a peer as an authority on the law in general.[citation needed]

See also

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References

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  1. ^ Voegelin, Eric (1997). History of Political Ideas, Volume 1: Hellenism, Rome, and Early Christianity. Columbia: University of Missouri Press. p. 104.
  2. ^ Wood, Ellen Meiksins (2008). Citizens to Lords: A Social History of Western Political Thought from Antiquity to the Late Middle Ages. London: Verso. pp. 103–104.
  3. ^ a b c Tussay 2022, p. 147.
  4. ^ Tussay 2022, p. 20.
  5. ^ Tussay 2022, pp. 19–21.
  6. ^ Tussay 2022; Wolfsdorf 2020.
  7. ^ Wolfsdorf 2020.
  8. ^ O'Neil, James L. (2000). "Royal Authority and City Law under Alexander and His Hellenistic Successors". The Classical Quarterly. 50 (2): 430. doi:10.1093/cq/50.2.424. JSTOR 1558900.
  9. ^ Tussay 2022, pp. 106.
  10. ^ Tussay 2022, pp. 108.
  11. ^ a b Van Nuffelen, Peter (2011). Rethinking the Gods: Philosophical Readings of Religion in the Post-Hellenic Period. Cambridge: Cambridge University Press. p. 116.
  12. ^ Stertz, Stephen A. (1976). "Themistius: A Hellenic Philosopher-Statesman in the Christian Roman Empire". The Classical Journal. 71 (4): 350. JSTOR 3298499.
  13. ^ Nicol, D. M. (1988). "Byzantine political thought". In Burns, J. H. (ed.). The Cambridge History of Medieval Political Thought, c. 350–c. 1450. Cambridge: Cambridge University Press. p. 64.
  14. ^ Tuori 2016, pp. 7, 11.
  15. ^ CORCORAN, SIMON (2017-06-01). "Roman Law and the Two Languages in Justinian's Empire". Bulletin of the Institute of Classical Studies. 60 (1): 96–116. doi:10.1111/2041-5370.12049. ISSN 0076-0730.
  16. ^ Condorelli, Orazio (2023-11-20). "Christianity and Medieval Civil Law". The Oxford Handbook of Christianity and Law. Oxford University Press. p. 98. doi:10.1093/oxfordhb/9780197606759.013.8. ISBN 978-0-19-760675-9.
  17. ^ a b Dvornik, Francis (1966). Early Christian and Byzantine Political Philosophy: Origins and Background. Vol. 2. Washington, DC: Dumbarton Oaks Center for Byzantine Studies. p. 722.
  18. ^ "The Novels of Justinian: Novel 105 (Scott)". The Roman Law Library. Université Grenoble Alpes. Retrieved 22 May 2021.
  19. ^ Thornhill, Chis (2011). A Sociology of Constitutions: Constitutions and State Legitimacy in Historical-Sociological Perspective. Cambridge: Cambridge University Press. p. 35.
  20. ^ Perrin, John W. (1973). "'Legatus' in Medieval Roman Law". Traditio. 29: 372. doi:10.1017/S0362152950009016. JSTOR 27830959. S2CID 152014184.
  21. ^ Wilks, M. J. (1963). The Problem of Sovereignty in the Later Middle Ages: The Papal Monarchy with Augustinus Triumphus and the Publicists. Cambridge: Cambridge University Press. p. 162.
  22. ^ Randall, Michael (2008). The Gargantuan Polity: On the Individual and the Community in the French Renaissance. Toronto: University of Toronto Press. p. 166.
  23. ^ Kantorowicz, Ernst (1957). The King's Two Bodies: A Study in Mediaeval Political Theology. Princeton: Princeton University Press. p. 131.
  24. ^ Viñuales, Jorge E. (2013). "Recherches sur le fondement de la légitimité judiciaire". In Dupuy, Pierre; Chetail, Vincent (eds.). The Roots of International Law / Les fondements du droit international (in French). Leiden: Brill. p. 566.
  25. ^ van Dijk, Conrad (2013). John Gower and the Limits of the Law. Cambridge: D. S. Brewer. p. 98.
  26. ^ al-Azmeh, Aziz (2007). The Times of History: Universal Topics in Islamic Historiography. Budapest: Central European University Press. p. 284.
  27. ^ van den Berge, Lukas (2017). "Montesquieu and judicial review of proportionality in administrative law: Rethinking the separation of powers in the neoliberal era". European Journal of Legal Studies. 10 (1): 210. SSRN 3041325.
  28. ^ Canning, Joseph (2011). "Civil (Roman) Law". In Lagerlund, Henrik (ed.). Encyclopedia of Medieval Philosophy: Philosophy Between 500 and 1500. Dordrecht: Springer. p. 221.
  29. ^ "Conclusion: Singulare et Unicum Imperium". Imperial Ideology and Provincial Loyalty in the Roman Empire. University of California Press. 2019-12-31. p. 409. doi:10.1525/9780520923720-013. ISBN 978-0-520-92372-0.
  30. ^ Brown, Alison (1986). "Platonism in Fifteenth-Century Florence and Its Contribution to Early Modern Political Thought". The Journal of Modern History. 58 (2): 384–413. doi:10.1086/243013. ISSN 0022-2801. JSTOR 1879916.
  31. ^ Leithart, Peter J. (2022). "4 Antiquity: Constantine and Constitutionalism". In Aroney, Nicholas; Leigh, I. (eds.). Christianity and constitutionalism. New York: Oxford University Press. p. 89. ISBN 978-0-19-758725-6. OCLC 1298383784.
  32. ^ Riga, P. J. (1990-01-01). "The Influence of Roman Law on State Theory in the Eleventh and Twelfth Centuries: A Study of the Roman Glossators and their Influence on Modern State Theory". The American Journal of Jurisprudence. 35 (1): 171–186. doi:10.1093/ajj/35.1.171. ISSN 0065-8995.
  33. ^ Tussay 2022, pp. 14–15.
  34. ^ Tussay 2022, p. 14.

Sources

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