Inventing the Individual: The Origins of Western Liberalism by Larry Siedentop

Author:Larry Siedentop [Siedentop, Larry]
Language: eng
Format: epub, pdf
ISBN: 9780674417533
Publisher: Harvard University Press
Published: 2014-10-20T00:00:00+00:00

Evidently, Gaius did not assume an underlying equality of moral status. His use of ‘person’ was purely descriptive and physical. It carried no moral implications. The church, following Constantine’s conversion, had accepted much Roman private law, modelling its courts and procedures on that law. But when knowledge and practice of Roman law declined after the fall of the Western empire, the overriding concern of the clergy was to save as much as possible, by helping Germanic rulers to create law codes for their new kingdoms and trying to protect their Romanized subjects. The understanding of Roman legal terms became fragile. For centuries there was neither leisure nor the ability to review basic assumptions about status in Roman law.

Gratian’s interpretation of the requirements of natural law amounted, however, to just such a review. It amounted to a reversal of assumptions in favour of human equality. For, in effect, it stipulated that all ‘persons’ should be considered as ‘individuals’, in that they share an underlying equality of status as the children of God. Instead of traditional social inequalities being deemed natural – and therefore not needing justification – an underlying moral equality was now deemed natural. This reversal of assumptions meant that paterfamilias and lordship were no longer ‘brute’ facts that stood outside and constrained the claims of justice. They too were now subject to the scrutiny of justice.

Papal insistence on ‘equal subjection’ to its rule carried this reversal of assumptions, with its potential for subverting paterfamilias and traditional lordships. The first prohibition of lay investiture by Pope Nicholas II in 1059 stressed the nature of the papacy’s universal authority: ‘We must be diligently solicitous for all men with the vigilance that pertains to our universal rule, taking heed for your (individual) salvation.’ And Gregory VII had reinforced that language: ‘By thy favour, not by any works of mine, I believe it is and has been thy will, that the Christian people especially committed to thee should render obedience to me thy specially constituted representative. To me is given by thy grace the power of binding and loosing (souls) in Heaven and upon earth.’ There was to be no exception of persons, emphasized Innocent III: ‘but it may be said that kings are to be treated differently from others. We, however, know that it is written in the divine law, “You shall judge the great as well as the little and there shall be no difference of persons”.’7 The ancient formula defining justice as ‘the set and constant purpose to give every man his due’ – a formula adopted by canon lawyers from Justinian’s Institutes – was thus shorn of any remaining belief (as in Aristotle) that unequal birthrights constitute a morally relevant ground for treating people differently.

Of course, the canonists did not foresee all the implications of this reversal of moral assumptions. They were not social revolutionaries. But the fact remains that they laid the foundation for a move away from an aristocratic society to a ‘democratic’ society. Such a reversal of assumptions not only foreshadowed a fundamental change in the structure of society.

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