The Prince and the Law: 1200-1600, Sovereignty and Rights in Western Legal Tradition.

Kenneth Pennington. Berkeley, Los Angeles, and Oxford: University of California Press, 1993. xvi + 335 pp. $40.

This is an account of juridical writings on the conflict of princely power and their subjects' rights over a four-hundred year period. Paradoxically, the scholars, from Bulgarus and Martinus in the twelfth century to Jean Bodin in the sixteenth, who wrote on the ius commune, the common law of Europe, which had roots in Roman and canon law, advanced ideas of absolute right along with subjects' rights.

These writers, who adopted the maxim that a prince was "emperor in his own kingdom" (3), were less concerned with whether the emperor, himself, had jurisdiction over other princes. In the early thirteenth century, however, English canonists, among others, began to express unambiguous statements about the prince's independence from imperial power, a maxim that became commonplace.

Jurists were far more interested in the question of whether the prince had the power to usurp the rights of his subject. When writers first distinguished between reason and the will of the prince in the early thirteenth century, they broke with earlier patterns of thought by taming absolute power with juridical norms, natural law, custom, privilege and obligations. As Pennington points out, they accepted that natural law transcended the authority of the prince's positive law. In the debate over the nature of princely powers, Pennington successfully challenges the tradition that an Englishman was the first to expound notions of due process. Probably, the achievement belongs to a French jurist of the late thirteenth century.

Thus, according to Pennington, it was the medieval jurists who were the first to develop a theory of individual rights, "ius naturale," natural law or natural right, that correspond to modern human rights. To indicate how these concepts functioned in power politics, he rehearsed the conflict between Emperor Henry VII and Robert of Naples in the early fourteenth century. Most jurists renounced the actions of Henry, who, when Robert falled to appear before him to answer charges of treason, condemned him in absentia. This dispute was important because it introduced into the political arena and into the ius commune ideas of due process and the relationship of natural law to due process.

On another issue, Pennington affirms that modern scholars have shown more interest in Machiavelli's prince than in the legal writings of the sixteenth century, but, in fact, in rejecting four centuries of juridical thought, the Italian writer was an exception to the rule. Jean Bodin's writing was more in line with legal tradition. In his somewhat revisionist view of Bodin's theories, Pennington argues that the work was "redolent with echoes of the past" (276), relying, as Bodin did, upon natural law to limit princely authority. In fact he limited princely authority, even more than previous jurists had done, by banning him from the courtroom altogether! The main original contribution of Bodin to legal thought was the writing of his systematic tract on sovereignty.

Medieval legal theories were bequeathed to the modern world, for due process of law was to become a part of the intellectual framework of all jurists. Rights and sovereignty, Pennington warns, are still waging a constant battle against each other. The culprit today is the modern sovereign state but he predicts that absolute sovereignty is on the defensive.

This is an insightful, informative, and sometimes revisionist study that should be read by all scholars interested in the development of the western legal tradition. Basing his analyses on extensive reading in manuscript collections, Pennington's treatment of princely power and subjects' rights, as the foundation of contemporary thought, is thorough and provocative.