Back on Bracton

With that out of the way, let's finally turn to the chapter on Bracton.

The King Above and Below the Law

I found Bracton's thoughts on kingship to be really exciting. For a medieval jurist, his thoughts are disconcertingly evocative of a modern school of thought: legal positivism. Specifically, his distinction between gubernaculum (the King's unquestionable powers) and iurisdictio (the King's dubious righteousness) is an intellectual maneuver which, though firmly rooted in a natural law philosophy, suggests the same conclusion as a modern legal positivist... that law's subject is properly the domain of governmental powers rather than of independent abstract principles.

The question with which I'm principally occupied - that of sovereignty - is activated in contemporary legal debate by the problems of jurisdiction. When a court lacks jurisdiction, it has no power within a given case to say what is right. (iuris = "right"; dictio = "to say")

Bracton's curious formulation of a King "below and above the law" threads the needle of this eternally vexing problem. The Bractonian King is grouped with Frederick II's Iustitia influenced emperor - but he's a significantly English deviation from the imperial ideal. For, if Frederick II's law-centered King is an incarnation of justice, Bracton's law-centered King is a legal subject beyond the reach of temporal powers. The law applies to this King. As E.K. notes on p. 149, Bracton assumed that the law goverened the propriety of the king's relationship towards other equally indefeasible rights - those of clergy, magnates and even the people. The law is above the king, in that it applies with equal validity to himself as to anyone else. The kingship itself is a product of the law. However, the King transcends the law by virtue of extra-legal and legislative powers.

The great Bractonian modification - and in this we may recognize the strong influence of England's struggles between Norman kings and local nobility - is that the King's power is shared with another source... that of his Council. On p. 157, E.K. explains the rhetorical structure of Bracton's definitions:

Bracton's method is always the same: exaltation through limitation, the limitation itself following from the king's exaltation, from his vicariate of God, which the king would jeopardize were he not limited and bound by the Law.

This movement is captured in a terminological shift which E.K. identifies - Bracton's Kings are not Christ-like as examplars of Christ's reign (imago Christi) but are Christ-like as emissaries of a divine, Law-giving Father. (see p. 159 and 162)

It is through this new, curiously English, formulation of powers that the Praecipe Henrico Regi Angliae (which I've encountered other references too) becomes sensible - an order from the King to the King that he perform an action or submit to justice for failure to do so. The power of the King is a closed circuit, but it nevertheless flows through a logical sequence of steps which can carry the King through the entire chain of position above, below, and back above the force of human law.

Christ's Purse

It is in the doctrines of property, though, that the absurdity of the Praecipe Henrico is manifest yet treated with respect. The king possesses two estates - an inalienable empire bound to his person by the law, and a defeasible personal estate which was treated "against the king as against any private person" (p. 171). If the King were to divest himself of an inalienable possession, he must by his own power claim it back again. If he is to forfeit possession of his personal property, then even his own power is insufficient to justly reclaim it.

The collection of properties which are inalienable are part of the emerging doctrine of a fisc - the common property of the Empire. The collection of properties which may be transferred are feudal - the property of individuals bound in relationships. On p. 172 E.K. emphasis that this is not yet a notion of dual kings. But this dichotomy of property is laying the groundwork for the later "corporation sole" - in which the King is an executive officer of a corporation consisting only of himself and his lineal ancestors and successors.

Though the property of this royal fisc was at the King's disposal, as the corporation's "executive officer," it was also subject to baronial supervision:

While the English kings reigning in the thirteenth century tried to ignore even the existence of a cleavage between themselves and the things public, the various baronial opposition groups were ready to widen that split and to pit the res publicae against the rex regnans. It is significant that during the constitutional struggles of the thirteenth and fourteenth centuries, the baronial objections were always centered on the fiscal-domanial sphere, including the prerogative rights attached to it, whereas the strictly feudal sphere - including feudal aids and ohter rights exercised by the king as personal liege lord - remained, on the whole, unchallenged. Within the orbit of public affairs, however, and especially public finances, the barons could venture to control the king, to bind him to a council of their own choice, and thus to demonstrate that things of public concern no longer touched the king alone, but 'touched all,' the king as well as the whole community of the realm.

In Bracton kingship is a special state of affairs - a King is undoubtedly possessed of superior position and status. But, he righteousness of his extra-legal capacities is subject to a truly constitutional system - his powers are only valid within the sphere justly constituted by established laws. Further, his powers are sometimes complete, but other times pragmatically subject to those of his Council. There's a menacing overtone to Bracton's philosophy. In Frederick II's theory of Kingship, there is no answer to the royal question: "Who's going to make me?" A king reading Bracton would be struck that the question is more than empty rhetoric, and has a response he wouldn't like to hear...