The prince and the law, 1200-1600: sovereignty and rights in the Western legal tradition (review)

Reviews 223 Pennington, Kenneth, The prince and the law, 1200-1600: sovereignty and rights in the Western legal tradition, Berkeley/Los Angeles/Oxford, University of California Press, 1993; cloth; pp. xiii, 335; R.R.P. US$40.00. Historians of Western political thought have now largely abandoned the longstanding practice of positing a strict division between 'medieval' and 'modem' political mentalities. Rather, the currentiy dominant view emphasizes the presence of important continuities between medieval and early m o d e m theories of government and community. But, as so often occurs with intellectual trends, a new exaggeration has arisen toreplacethe one that has been demolished: specifically, the postulation of a nearly seamless web of intellectual development from the twelfth or thirteenth centuries to the seventeenth and beyond. One of tbe main proponents of this new orthodoxy is Brian Tierney, who during the last half-century has vigorously promoted the claim that medieval legal structures, especially Canon law, yielded the essential source material for supposedly 'modem' political ideas, such as consent and constitutionalism. His students have now taken up the mantle of defending and extending tbe thesis. Kenneth Pennington's The prince and the law is the clearest illustration of tbe paradigmatic status achieved by Tiemey's interpretation. Pennington cites Tiemey in an almost canonical fashion, often to the exclusion of better and more recent scholarship on a given topic. Pennington's thesis is simply stated. The conflict commonly present within m o d e m political and legal thought between sovereignty on the one hand and individualrightson the other, has its origins in the issues raised by the medieval European ius commune, the synthesis of Roman and Canon law. Thus, medieval legal discussions of, for example, the nature of potestas or 'due process' are integral to any complete understanding of the development of Western political thought. There is nothing inherendy objectionable about this claim. But Pennington presses it to an extreme by explicitlyrejectingthe efforts of scholars to balance elements of continuity with an acknowledgement of the important historical changes that occurred between ca 1100-1700. Pennington's approach sets up a dichotomy between continuity and rupture in this period that over simplifies the complex patterns of persistence and change typical of medieval and early modem European thought 224 Reviews O n the one hand, Pennington has done an admirable job of gathering together a broad range of medieval legal documents and treatises in order to support his claim. O n the other hand, he does not take equal care with either secondary literature or non-juristic medieval sources. T w o illustrations of the former must suffice. In the epilogue, Pennington boldly asserts that: 'Scholars . . . have reached some agreement about Machiavelli's intentions when he wrote The prince and about the litde book's importance in tbe history of political thought' (p. 269). However, there is certainly no such concurrence, as even a brief wade into the scholarship generated during the past ten years reveals. Pennington's support for this premature closure derives from four books, only one of which, D e Grazia's brilliant but idiosyncratic Machiavelli in Hell, is less than a decade old. Similar weakness of scholarship is evident in Pennington's discussion of the 'Bracton' text. H e dismisses summarily the outstanding textual criticism of S. E. Thome that convincingly challenges the ascription of the larger portion of De legibus et consuetudinibus Angliae to Bracton's hand. Moreover, he ignores well-known articles by Gaines Post Ewart Lewis, W . C. Jordan, and Charles Radding on the sources and nature of the Bractonian position. The sole secondary work about De legibus of which he makes significant use is Brian Tiemey's 1963 article on the topic, which has been subjected to considerable criticism. Even more disconcerting is the narrow framework within which Pennington places his legal sources. H e discounts entirely tbe many writings which, while heavily indebted to the ideas of the ius commune, were not produced by Roman or Canon lawyers. For instance, no mention is made of John of Salisbury's discussion of the relation between the princeps and the law in the Policraticus, which is couched in the same terms that Pennington finds...