New entry on Kantorowicz

First, let's talk about the structural organization of this work. We began with Plowden's Reports - in short, a case summary explaining the problem of the King's doubled body. On the one hand, we have a doctrine which helps to settle thorny dilemmas of power. Can one King retract another's contract? The answer is "no," but the imperative of law is to provide a plausible "why." And hence, we find that a King can't be a minor because the mystical body of King-ship is the party to a contract.

In the opening question, we face a cross-roads. Our paradox is already clear... it's a simple variant of the puzzler "can God create a stone so heavy he can't lift it?" If we choose an answer, God can't help but be diminished. The unfortunate position of law is that it must answer paradox, and the 14th century's resolution errs on the side of finality. If the King's will shall be mercurial, then it's authority shall be arbitrary. Though it's not easy to dispossess the King, it's far harder to undermine the basis of his authority by admitting to his inconstancy.

In E.K's analysis of Richard II we see the stakes of this problem humanized - the fickleness of the man-king has been tamed by subjecting the man who is king to the fickleness of the divine King. Richard II derives great elevation from his proximity to the Godhood of sovereignty. But the office owes the man no duty - it may lift itself from his person and alight upon the body of Bolingbroke. And in this we face the dilemma of Icarus at the height of political power - he who dares to epitomize the sun, nevertheless flies upon waxen wings, and is sure to fall at the hands of the very power towards which he has exalted himself.

After laying out the terms of the ultimate issue, E.K. takes us back to the beginning - when things were different. He begins his discussion in England, shortly after Hastings, with the work of the Anonymous Norman. The man is out-of-step with his time and with his place. For, as a Norman, he embodies a contemporary European notion of law and kingship... the King as the Christomimesis - the image of Christ. E.K. doesn't do such a great job of drawing out the historical counter-pressure (which Blackstone does discuss in depth) of an indigenous nobility that refuses to accept the wholesale imposition of Norman legal frameworks. But, he does point out the idiosyncracy of his leading author.

From there, we move to the larger milieu - Otto II, the 10th Century Emperor of "Holy Rome." Otto II is a King who drinks from the Godhead of Christ. It's a messianic metaphor of Kingship, and as such embodies a sequence of paradoxes which imperfectly translate into the English experience. A King enjoys office by grace, which is to say by election - by the mysterious workings of divine care for this earth.

In Chapter IV, we experience a shift in ideals of Kingship, towards a legalistic framework. Frederick II, of Sicily enjoys his authority from the font of Reason and Justice. It's within this framework that E.K. situates Bracton - the King as an exalted receptacle of divine virtues, rather than a mere exemplar of Christ. If Otto II ruled because God cared for man, then Frederick II rules because man must care for God. Otto II epitomizes a divine compassion for the sorry state of man. Frederick II rules because man may only enjoy the divine through the intervention of intermediaries. In this type of a King, we find Bracton's ideal... a man who must mediate between the exalted ideals of mankind and the debased facts of man's experience.

If the Christocentric King of the 11th century is bound to this world by mortality, the legal King of the 12th century is bound to this world by a celestial arrangement of law. For this model, the words of Justinian's Code - "greater than the imperium is the submission of the principate to the laws" (p. 104) - epitomizes rulership. The King is bound to the laws, not by divine or secular force, but by identity with Justice.

It is this new identity between power and justice which legitimizes the non-ecclesiastical state. I found the metaphor from Accursius to be especially powerful - "just as the priest, when imposing pentience, renders to each one what is right, so do we when we judge." (p. 121) The Christocentric King of the earlier era was a divine act of Mercy. By the time of Frederick II, Mercy was the provenance of Christ's shepherds in the clergy, but Justice was to be dispensed by the Father's appointed - the forces of the State. As the clergy could be trusted to channel Divine Mercy, the judiciary could be trusted to channel Divine Justice - "Melius est bonus rex quam bona lex"... "it is better to be ruled by a king than by the Law." (p. 135) (Nevermind that this flies in the face of the apparent point laid out in the scriptural Book of Kings.)

This allows the distinction between the King's power and his inspiration to gain conceptual clarity. Aquinus differentiates between his vis coactiva - his coercive power - and the Law of Nature's vis directiva (directive power) to which he too was subject. (p. 136) On the one hand, this new conception of Kinghood confers dreadful power to the King. If he traverses the laws of natural Justice, his power shall remain unchecked - it flows from the structure of the world rather than the compassion of God. On the other hand, it undermines the King's temporal authority to the extent that his very Kingship is dependent upon his conformity with the divine Justice that raises him up. "In the Law-cenetered era... the Prince no longer was 'god by grace'" (p. 141) - on the one hand, his power was an arbitrary fact, but his authority has become dependent upon the judgment of men rather than the will of God.

And that's where E.K. delivers us unto the hands of Bracton - a truly challenging philosopher of Kingship. Because it's late, I'll save my discussion of Bracton for later. Though I'll share a passage emailed to me by my professor at the start of this entire enquiry:

Bracton, the early English treatise writer wrote a famous, particularly fraught passage in De Legibus et Consuetudinibus Angliae in the 13th century.

"The king has no equal within his realm, nor a fortiori a superior, because he would then be subject to those subjected to him. The king must not be under man but under God and under the law, because law makes the king, for there is no rex where will rules rather than lex. Since he is the vicar of God, there ought to be no one in his kingdom who surpasses him in the doing of justice, but he ought to be the last, or almost so, to receive it, when he is plaintiff. If it is asked of him, since no writ runs against him there will [only] be opportunity for a petition, that he correct and amend his act; if he does not, it is punishment enough for him that he await God's vengeance. No one may presume to question his acts, much less contravene them."

E.K has walked us to Bracton's doorstep of analysis. Our King is not a ruler by the proactive Grace of God, but rather by the necessity of society. We may pray that he subjects himself to the rule of Justice, but one can't rely upon God to hold the King to account within the boundaries of this world, and one cannot resist the King's temporal power within this world's confines.