Law, Principle, and the Theologico-Political History of Sovereignty

political theology, vol. 14, issue 4, 2013, 432-479

© W. S. Maney & Son Ltd 2013 doi 10.1179/1462317X13Z.0000000009

Law, PrinciPLe, and the theoLogico-PoLiticaL history of sovereignty1

Paul E. Nahme2

University of KansasSmith Hall, 1300 Oread Avenue

Lawrence, KS 66045USA

[email protected]

abstract

This article takes it cue from the debate between Carl Schmitt and Erik Peterson regarding the possibility of political theology within Christian-ity, and in response, offers a conceptual-historical portrait of sovereignty and its juridical dimensions. Beginning with the introduction of Roman law into the medieval Church, the article traces the logic of “legal princi-ple” as the basis of sovereign decision and how the form of legal distinc-tions adopted into canon law translate the Romanitas of law into the theory of papal sovereignty. By the Romanitas of law, that is to say the principle of sov-ereignty in law. The article then seeks to describe the conceptual translations of Roman politics and Stoic metaphysics into theological form and the logic of this translation into medieval natural law. The article concludes by evalu-ating how the civic theology of Rome is conceptually inherited by the pol-itics and legal framework of sovereignty and returns to Peterson’s critique of Schmitt, arguing that political theology can be understood as a dynamic where politics is theologized, assuming that in the history of religion, theol-ogy and politics are never fully distinct to begin with.

Keywords: canon law; Cicero; decision; law; natural law; papal monarchy; Peterson; Plato; principle; Roman law; sovereignty; Schmitt.

1. I am thankful to the Social Sciences and Humanities Research Council of Canada for supporting the research that has helped enhance this article. I am also thankful to Yakir Paz, Hillel Ben-Sasson, Jennifer Harris, and especially Brauna Doidge, who read and com-mented on different versions of this paper and whose helpful criticisms have enhanced my overall understanding of the argument and its historical contours. Any mistakes and failures are of course my own.

2. Paul E. Nahme is Assistant Professor of Religious Studies at the University of Kansas.

mailto:paul.nahme%40ku.edu?subject=

Nahme The Theologico-Political History of Sovereignty 433

“Law wants to be the discovery of what is…”(Plato, Minos, 315a2-3)

The theologico-political problem, in its growing contemporary interest, demands historical as well as theoretical reflection. In the well-known view presented in Carl Schmitt’s Political Theology (1922),3 political theology con-cerns the secularization of concepts previously found in theology as they are employed to conceptually describe the state. But in this translation, there remains an incomplete secularization of these concepts since their formal structure remains the same. Schmitt’s statement concerning the “systematic structure” apparent in theology and inherited by the state was intended as a theoretical assessment of a legal concept in light of its history, as well as an introduction to the “conceptual” history of this idea.4 It was not a statement of theological doctrine.5 Indeed, the genre and form of Schmitt’s inquiry is that of political theory.6 Hence, Schmitt’s argument was one about method: about proceeding to recover the formal structure of a theological idea after its secularization. But the importance of the idea of sovereignty—the idea perhaps most central in political theology—concerns the history of dogma, ideas, and institutions in the theological imagination. For though the force of political legitimacy might arise from out of theology, the history of con-cepts is never reducible to historical fact alone.

As an issue of history and conceptual structure, therefore, Erik Peterson famously challenged Schmitt on the question of a Christian political the-ology, arguing that the early Christian Patristic emphasis upon the Trin-itarian doctrine foreclosed the possibility of projecting a sovereign unity and principle upon the eschatology of Christianity.7 And while Schmitt’s

3. Carl Schmitt, Political Theology: Four Chapters on the Concept of Sovereignty, trans. George Schwab (Chicago: University of Chicago Press, 2005).

4. For an interesting example of Schmitt’s methodological influence on this kind of historical reflection, see Hans Blumenberg, Legitimacy of the Modern Age, trans. Robert M. Wallace (Cambridge, MA: Massachusetts Institute of Technology Press, 1985).

5. Carl Schmitt, Political Theology II: The Myth of the Closure of any Political Theology, trans. Michael Hoezl and Graham Ward (Malden, MA: Polity, 2010), 42.

6. Heinrich Meier, The Lesson of Carl Schmitt: Four Chapters on the Distinction between Political Theology and Political Philosophy (Chicago: The University of Chicago Press, 1998), 20, 120ff. See also Paul W. Kahn, Political Theology: Four New Chapters on the Concept of Sover-eignty (New York: Columbia University Press, 2011), 91.

7. Erik Peterson, “Monotheism as a Political Problem: A Contribution to the His-tory of Political Theology in the Roman Empire,” in Theological Tractates, trans. Michael J. Hollerich (Stanford: Stanford University Press, 2011), 68–105. While Schmitt’s early work, Roman Catholicism and Political Form does consider papal monarchy as the basis of political representation, a theme also explored in Schmitt’s Leviathan book, it is the absence of this consideration of papal monarchy in the medieval period, specifically in the context of his debate with Peterson, to which I am referring.

434 Political Theology

long-overdue reply addresses many of the weaknesses in Peterson’s argu-ment, in this particular exchange both authors nevertheless avoid discuss-ing the concept of sovereignty in what may be its most formative period: the medieval rise of papal monarchy.8 It is the logic of the mono-arkhe, of the single ground or principle that finds its way into the logic of law, I argue, that best describes the meaning of sovereignty.9 Whether or not this silence on the part of both Schmitt and Peterson is due to a tension between their parochial convictions and the lingering abject opinions of nineteenth-century Protestant intellectual elite toward Catholicism, inso-far as a general discussion of political theology is concerned, the problem of papal sovereignty requires clarification. It is the figure of the papal sov-ereign that best addresses the question of political theology.

If we are to follow Schmitt’s definition of politics, sovereignty is polit-ical because it represents a principle of decision; a decision, however, between who is and is not an enemy, i.e. a formal decision about distin-guishing friends and enemies. But this formal characteristic—the logic of distinction and its basis upon a principle of metaphysical and political unity—deserves conceptual and historical clarification. What is contained in the imagination of this logic of decision? What is its provenance? In this article, I argue that the logic of decision traces its roots back to the Romani-tas of sovereignty. What I mean by this will be the main argument of this article, but at present I mean to invoke the formal role of sovereignty in law as a historically refracted Roman inheritance.10

8. Schmitt does discuss the medieval and early modern absolutist state as an exam-ple of the katechon of empire. However, in precisely avoiding the papal sovereign, Schmitt misses the point that theology is not a sphere that is poised over and against the political, but intertwined in the logic of the political. See Carl Schmitt, The Nomos of the Earth in the International Law of the Jus Publicum Europaeum, trans. G. L. Ulmen (New York: Telos Press, 2003), 57–66.

9. Throughout this article, I will largely refer to the political distinction within law as “sovereignty,” however, when the argument turns to Peterson more directly in the latter sections of this article, I will sometimes refer to monarchy. I use the latter term to describe the specifically terminological debates concerning Greek patristic thought and Peterson’s attempt to discuss the alignment of metaphysical and political concepts. All references to monarchy will be appropriately contextualized.

10. A particularly noteworthy example of this kind of study of the history of sover-eignty is Jean Bethke-Elshtain, Sovereignty: God, State, Self: The Gifford Lectures (New York: Basic Books, 2008). While Bethke-Elshtain acknowledges the papal role in consolidating the concept of sovereignty, she is more concerned with the post-Ockhamist metaphysics of voluntarism. While this conceptualization of the problem of sovereignty is a necessary inquiry, it is in fact quite distinct from what I wish to argue here. My argument will con-sider the rationalist theory of sovereignty prior to the nominalism of Ockham and accepts that a future study would of course have to consider this extended argument. However, the latter is simply beyond the scope of the present argument.


The Western legal tradition owes its systematic development in large part to the Church’s adoption of Roman law for both administrative and theological conceptualism in the eleventh to the thirteenth centuries. This conceptualism, I will argue, consists in reformulating the very ontology of law, of enforcing “legality” with the strength of a logical “principle.”11 Thus, the meaning of sovereignty gains its strength in the medieval papa-cy’s use of law as a principle of political and ontological authority. And though the history of papal sovereignty in the middle ages consists of many political and social machinations that contribute to the Church’s need for greater legal and conceptual consistency in consolidating its own institutional identity, I am less concerned with the “historical” dimensions of this political history and more so interested in a kind of hermeneu-tical investigation into the legal imagination that surrounds the concept of sovereignty. Thus, in this article I will investigate the legal imagina-tion of sovereignty as what may prove an introduction of Roman political concepts into the theological imagination of the medieval Church. Con-sequently, as a philosophical argument, I want to suggest that political the-ology, understood in the history of ideas, should not be extricated from the political meaning of Rome, and unlike Peterson’s rebuttal to Schmitt, it does in fact shape part of Christian political history. For his own part, Schmitt offered the following counter-argument to Peterson: that “polit-ical theology is indeed a polymorphous phenomenon… There are many political theologies because there are…many different kinds of methods of doing politics.”12 But the question that lingers is whether “methods of doing politics” distinguish themselves from the unity of civic theology that is political theology.13 In other words, if the Roman formulation of sovereignty is considered a plausible inheritance of law and politics today, then we

11. Throughout this article, I refer to the “principle” of sovereignty and the “princi-palization” of law. The play on first (principal), foundation (principium), and rule or law is deliberate and intended to reflect the logic of Roman law which the Church inherited: the principle becomes a temporal distinction between beginning and end, which requires both terms in advance of their occurrence. Thus, the principle is abstract and immanent to rea-son, which contains and describes them.

12. Schmitt, Political Theology II, 66.13. Of course, Peterson for his own part, would deny that such a thing as civil the-

ology in Rome could be possible since he maintains that theology is the result of Chris-tian revelation alone. It is only through the unique word of God speaking about God that enables such a thing as theo-logy. See for example, Erik Peterson, “Was ist Theologie?” in Theologische Traktate, vol. 1 of Ausgewählte Schriften, ed. Barabara Nichtweiß (Würzberg: Ech-ter, 1994), 13. Translated as “What is Theology?” in Theological Tractates. For a comparison of Schmitt and Peterson in their respective positions in the debate, see György Ceréby, “Polit-ical Theology versus Theological Politics: Erik Peterson and Carl Schmitt,” New German Critique 105, vol. 35, 3 (Fall 2008): 7–33.


must ask after the conceptual structure of political theology, not the reverse. Thus, the scope of political theology as a juridical articulation of sover-eignty arises from the Roman, and thus, civic theology of empire. Politi-cal theology is therefore, not to be located in the unidirectional shift from theology to secularization, nor is it localizable in any “religion” whatso-ever.14 Rather, the uniquely political theological discourse of law and the political decision will have to be located in the sovereign concept, sys-tematically expressed in the Romanitas of empire. Interpreted in this light, we need not begin with a problematic concept of “secularization” as the condition of political theology; rather, political theology should be inter-preted as the civic theology of Rome.

A Note on Methodology

Based upon the scholarly precedent set by Kantorowicz’s masterful study of kingship15 and its theologico-political contours, many theoretical engage-ments with Schmitt have proceeded to analyse the concept of sovereignty in political and social history or the juridical system that expresses this secularized concept of the king. In this article, I wish to focus particularly upon the legal imagination that surrounds the concept of sovereignty in medieval Christianity. My interest is not in giving an account of institu-tional history, nor with narrating the internal meaning of Church history. Rather, I want to focus upon the idea of “law” in its conceptual transfor-mation in this period; in particular, I am interested in what I term a shift towards the principalization of law, that is, the turn toward conceptual cat-egories and distinctions as adopted from Roman law. This, I argue, is the theological turn to the logic of sovereignty: the Romanization of canon law as the condition of politics in law.16

14. Indeed, it is problematic to conflate religion and theology as identical spheres cor-responding to political theological concepts. Religion must be understood as an anthro-pological phenomenon of discourse, embodying practices, disciplinary, pietistic, and institutional forms that all provide the public forum of a human activity. Schmitt’s discus-sion of the public sphere is thus deeply problematic as a response to Peterson insofar as the latter concerns himself with metaphysico-political concepts, not outward practices and actions of early Christians. It is this idealization of religion that shows Schmitt’s formalist tendencies, and indeed, his affinities to Weber.

15. Ernst Kantorowicz, The King’s Two Bodies: A Study in Mediaeval Political Theology (Princeton, NJ: Princeton University Press, 1997).

16. Hence, politics becomes the logical possibility of conflict as a predetermined antithesis. The decision on friend and enemy is inscribed in advance by the very principle of sovereignty as a principle of identity. This is the basis of Derrida’s critique of Schmitt in the Politics of Friendship, that Schmitt conflates modal-transcendental and historico-empirical temporalities in his definition of the political, demonstrating the “innermost


A focused study of the history of canon law in the middle ages would perhaps demonstrate a point of tension between theology and politics that does not fit my description of sovereignty in law,17 but if my account here can be interpreted from the perspective of a kind of conceptual his-tory, then my interest is only with making a plausible philosophical claim about the “theologization” of an inherently Roman concept of sover-eignty. Though my interest is in the concept of sovereignty in its con-ceptual transformations, I nevertheless believe historians could also argue similar points to those herein (and many have provided prolegomena for this endeavour).18 Yet, my interest concerns the introduction of Roman law into the canon law of the Catholic Church in the eleventh and twelfth centuries, as an ideational revolution, which I interpret as a “theologiza-tion” of an imperial concept. Consequently, I am investigating the legal idea of sovereignty, not its empirical history.

In the following article, I proceed to analyse the conceptual development of papal sovereignty as a phenomenon of political theology that merits greater theoretical exegesis. The papal sovereign demonstrates the theologico-political contours of law as a conceptual and institutional power, and I am

spring of this logic: the passage from possibility to eventuality… Schmitt does not wish to dissociate the quasi-transcendental modality of the possible and the historico-factual modality of the eventual.” The Politics of Friendship, trans. George Collins (New York: Verso, 2005), 86. Much of this temporal collusion is implicit to my argument concerning the logic of the principle/principal and will become clear in what follows. For a similar critique of this determinative logic, see Erik Peterson, “Kaiser Augustus im Urteil des antiken Chris-tentums: Ein Beitrag zur Geschichte der politischen Theologie,” Hochland 30 (1932–33): 288–89. I will return to Peterson’s point in what follows.

17. See for example the masterful studies of the investiture controversy and its after-math of Church reform and increased papal authority in Ute-Renate Blumenthal, The Investiture Controversy: Church and Monarchy from the Ninth to the Twelfth Century (Philadel-phia: University of Pennsylvania Press, 1988). Consider also Morris’ Papal Monarchy: The Western Church from 1050–1250 (Oxford: Clarendon Press, 2001).

18. I would like to stress that this article seeks to philosophically describe the his-tory of a concept and is not a historical investigation into an institutional history or a dis-puted event. I employ a large number of historical and historiographic scholarship, which I believe to be indispensable to my own research, however, I am nowhere near as capably trained in such work. I cite only the most important sources, to my knowledge, for exam-ple, Brian Tierney, Foundations of the Conciliar Theory: The Contribution of the Medieval Canon-ists from Gratian to the Great Schism (New York: Brill, 1998), which is widely acknowledged as a groundbreaking study in medieval political theory as well as The Crisis of Church and State, 1050–1300 (Toronto: University of Toronto Press, 1988). See also Colin Morris, The Papal Monarchy (cited in n. 13). But my interest is with a theoretical problem in the contem-porary discussion of political theology. Hence, I would like to admit my limits in the study of medieval canon law, theology, and church history to lie precisely in my hope to analyse these shifting concepts in political theory.


interested in the medieval papacy because it is here that “law” becomes the vehicle for a political concept. Analysing the idea of a “legal principle,” I trace this logical introduction of the sovereign principle into Christianity as a conceptual palimpsest, where Roman formalism is impressed over Chris-tian and Greek conceptions of law. Again, both “Christian” and “Greek” when juxtaposed with “Roman” describe conceptual imaginations, and so I therefore begin with a discussion of the introduction of Roman law into the canon law of the Church, followed by a discussion of Plato’s concep-tion of law and decision and of Cicero’s systematic law of nature and reason. The latter comparison will shed light on how the concept of sovereignty has been insinuated into a Stoic logic of immanence, or what Giorgio Agam-ben has described as oikonomia.19 Deriving from a similar root as oikeiosis, the Stoic principle of self-orientation in and around the divine principle, this imagined influence of Stoicism serves as a conceptual description of sov-ereignty being naturalized into the law of the Church. In the concluding section, therefore, I return to Erik Peterson’s argument about political the-ology in light of this naturalized, rationalized, and legalized understanding of monarchy and sovereignty. Through this historical exposition of the sov-ereignty principle, I hope to outline the inheritance of the Romanitas of law. Thus, I conclude by considering how the transformation of the logic of law requires historical reappraisal of how the political concept of sovereignty arose in theology. It is a history that involves the Greek and Hebraic ante-cedents of Christianity becoming thoroughly Latinized and thus, Roman, imperial, and political. The political sovereign as we know it, is a theolo-gized concept prior to being a secularized concept; and insofar as it is a polit-ical concept, it is a naturalized concept that is not natural. Insofar as political theology revolves around sovereignty, therefore, it also revolves around the civic theology of Rome.

The Legal Autonomy of the Church and Societas

Before considering the metaphysical and theological contours of sover-eignty in the abstract, I would like to first respond to the lacuna in both Peterson and Schmitt’s arguments by turning to the medieval Church.

19. Agamben, The Kingdom and the Glory: For a Theological Genealogy of Government and Economy (Homo Sacer II.2). On the concept of oikeiosis, see Brad Inwood, “Stoic Ethics,” in Brad Inwood, ed., The Cambridge Companion to Hellenistic Philosophy (New York: Cambridge University Press, 2003), 677, as well as Brad Inwood, Ethics and Human Action in Early Sto-icism (Oxford: Clarendon Press, 1985), ch. 6. For a critical examination of the difficulties of translating oikeiosis into a philosophical doctrine of self-reflexivity of rational nature, see William W. Fortenbaugh, ed., Stoic and Peripatetic Ethics: The Work of Arius Didymus (New Brunswick: Transaction, 2004), 195ff.


Here we find a transformation of the political identity and legitimacy of the papacy, which presents a clear challenge to Peterson’s original conclu-sion. For the idea of sovereignty described above should be understood in the light of Church history.

In the period spanning the tenth to the thirteenth centuries, known as the period of reform in medieval western Christendom, much can be said about the growing force of law in political life. The confluence of institu-tional reform of the Church on the model of autonomous bishoprics and abbeys, such as Cluny, and the growing theoretical problem of establish-ing harmony between secular and ecclesiastical power as witnessed in the investiture contest, occurred in tandem. Hence, the Church was both pre-serving its historical institutions and theoretically strengthening them in theology. But the same developments that preserved tradition also intro-duced the transformation of the legal form of the Church: the sovereignty in and of the Church. The conciliar model, dating as early as the time of Tertullian, suggests the history of Church legislation to be longstanding. However, no systematic or unified legal identity and authority had been exhaustively articulated prior to the eleventh century.20 But in responding to the political reality of early medieval Europe, where secular kingship sought supremacy over the Church, the papacy benefited from the legal form of “association,” such as the model of Cluny or other bishoprics, as an expression of its political unity. There was a communal pluralism com-mon throughout Europe—with independent monasteries, burghos, and serfdoms largely governed internally21—and the Church also claimed a

20. This is not to suggest that ecclesiastical law did not yet exist in any systematic form. See Hamilton Hess, The Early Development of Canon Law and the Council of Serdica, ed. Gil-lian Clark and Andrew Louth (London: Oxford University Press, 2002), 86. The Theo-dosian Code itself mandated the would-be private spheres of life as publicly regulated, such as enjoining Christianity upon the peoples of the empire, and exempting clerics from public service. If the early issuance of canons found expression in public law, this was a mandate enacted by the Imperial authority. Insofar as the regulation of communities were concerned, each community was effectively granted privileges to administer its own judg-ments and affairs. See Susan Reynolds, “Law and Communities in Western Christendom,” The American Journal of Legal History 25, 3 (July 1981): 205–224 (210).

21. In the secular-temporal sphere, the legal reality governing disputes at the begin-ning of the eleventh century was largely dependent upon Germano-Roman customs. But these customs were infused with a particular Carolingian theological significance, such that there was no real difference between sin and crime. Stephen Kuttner notes the can-ons of the Dionysian collection were handed out in the Carolingian kingdom under Char-lemagne, but this was merely an act of literary piety. The Frankish Church followed the king rather than the canon. Later, in the medieval period, the king’s statute could affect the Church, but could not become a canon, not even in his own realm. See “Methodological Problems Concerning the History of Canon Law,” Speculum 30, 4 (October 1955): 539–49


parallel autonomy as a community. There were royal charters and grants of land and privileges to be observed thereupon to a community such as a town or district or monastery;22 each unit was considered a corporate entity with its own customs and what jurists would later refer to as ius pro-prium.23 Community charters granted authority to corporate bodies24 to administer their own procedural judgments of cases and conflicts. They determined the judgment and, if necessary, to which method of ordeal one was sentenced.25 In short, law was communal. Authority was found

(543). By contrast, Susan Reynolds draws attention to the very basis of the ordeal as a judg-ment imbued with divine fiat. She notes that the general conditions by which a true legis-lative authority might impose regulated customs and as such, change customs, was not in place yet. She draws on the scabini and charters as examples of popular judgment and cus-tom. See Reynolds, “Law and Communities,” 208.

22. See, for example, Barbara H. Rosenwein, Reading the Middle Ages: Source from Europe, Byzantine and the Islamic World (New York: Broadview Press, 2006), 206ff; Theodore Evergates, Littere Baronum: The Earliest Cartulary of the Counts of Champagne (Toronto: Uni-versity of Toronto Press, 2003); Theodore Evergates, Giles Constable and William Mendel Newman, The Cartulary and Charters of Notre-Dame of Homblieres (Cambridge, MA: Medieval Academy of America, 1990).

23. The law of a particular propertied association as opposed to the ius commune—which was said to transcend borders. See Manlio Bellomo, The Common Legal Past of Europe 1000–1800 (Washington, DC: Catholic University of America, 1995); Thomas Kuehn, “A Late Medieval Conflict of Laws: Inheritance by Illegitimates in Ius Commune and Ius Pro-prium,” Law and History Review 15, 2 (1997): 243–73.

24. One particular legal community with such autonomy was the Jews. The Jews had been granted communal autonomy through a combination of Roman and Christian Imperial tradition and Augustinian theological acknowledgment. See for example De civi-tate Dei, 18.46; The City of God Against the Pagans, trans. W. C. Green (Cambridge, MA: Harvard University Press, 1960), 50; Enarrationes in Psalmos, 40.14; both cited in Joel Rem-baum, “The Talmud and the Popes: Reflections on the Talmud Trials of the 1240s,” Viator 13 (1982): 203–223 (208); see also Mark Cohen, Under Crescent and Cross (Princeton, NJ: Princeton University Press, 1995); Kenneth Stow, Alienated Minority (Cambridge, MA: Harvard University Press, 1994); Friedrich Lotter, “The Scope and Effectiveness of Impe-rial Jewry Law in the High Middle Ages,” Jewish History 4, 1 (1989): 31–58; Jacob Katz, Exclusiveness and Tolerance: Studies in Jewish-Gentile Relations in Medieval and Modern Times (New York: Behrman House, 1961), for a discussion of the early Christian empires and their treatment of the Jews. In Justinian’s codex as well as the Theodosian code, Jews were granted relative civil autonomy. See Amnon Linder, The Jews in Roman Imperial Legislation (Detroit: Wayne State University Press, 1987), esp. Law 28 of February 3, 398, “On the Judicial Powers of the Jewish Authorities”; Solomon Grayzel, “The Jews and Roman Law,” Jewish Quarterly Review 99, 2 (October 1968): 93–117.

25. These grants became increasingly common and were normative by the twelfth cen-tury. Later grants reflected practices that appear to have been longstanding despite the erosion of the law of the Roman Empire and its hybrid form in the Carolingian kingdom. Berman, Law and Revolution, ibid. Susan Reynolds (“Law and Communities”) bases her claim on exten-sive primary sources, which I reproduce here. They are mostly local charters and thus depict


dispersed amidst a kind of legal pluralism, lacking a centralized authority, even in the secular king.

The consultative establishment of the College of Cardinals as well as the earlier establishment of the Universities of Bologna and especially Paris26 (the intellectual epicenter of the Curia) also demonstrate this his-torical family resemblance of growing juristic identities; that is, the cre-ation of associations.27 Historically, the Church had existed in a political context where the distinction between temporal and spiritual authority was still honoured. Yet this context began to change with the shifts in the use and understanding of law. Indeed early Christian thought had rec-ognized the established role of the emperor, and later Merovingian and Carolingian kings. As Peterson has noted, the insistence upon Trinitarian doctrine may bear some responsibility for the initial acceptance of tempo-ral power.28 However, I believe this may be due more to a lack of formal concepts than a purely theological motive, and the sheer fact of temporal power having the force of violence at its command.

Papal Precedents of Sovereignty

In Church history the introduction of Roman law changed all of this. In 1070, a palimpsest of the Digest of Justinian, the so-called Florentine codex, was discovered. The study and teaching of Roman law devel-oped the principles of scholastic pedagogy par excellence.29 New categories

customary practices of different regions: e.g. F. Harmer, ed. and trans. Select English Historical Documents of the Ninth and Tenth Centuries (Cambridge, 1914), no. 18 (900–924); J. Ficker, Forsc-hungen zur Reichs- und Rechtsgeschichte Italiens (Innsbruck, 1868–74), iv, nos. 21, 43, 46 (918, 1013, 1015); Robertson, Anglo-Saxon charters, no. 66 (990-92); L. A. Muratori, Antiquitates Italicae (Milan, 1738-42), iii, col. 643–6, 647–50 (1010, 1098); B. Guerard, ed., Cartulaire de Saint-Victor de Marseille (Paris, 1867), no. 691 (1045); M. M. Bigelow ed., Placita Anglo-Normannica (Lon-don, 1879), 17-19 (c. 1077); D. Sam-Marthanus, Gallia Christiana (Paris, 1870–87 edn.) xi, app. col. 202-203 (1030); A. de Courson, ed. Cartulaire de Redon (Paris, 1863), no. 345 (1084); A. Bruel, ed. Recueil des chartes de Cluny (Paris, 1876–1903), no. 3821 (1103–14); B. de Brous-sillon, ed. Cartulaire de Saint-Aubin d'Angers (Angers, 1896–99), nos. 9, 106-107 (1139, 1074).

26. See Paul Vinogradoff, Roman Law in Medieval Europe (Union, NJ: The Lawbook Exchange, 2001); Peter Stein, Roman Law in European History (London: Cambridge Univer-sity Press, 1999); Franz Wieacker, A History of Private Law (Oxford: Clarendon Press, 1995).

27. Harold Joseph Berman, Law and Revolution, 124; Brian Tierney, Foundations of the Conciliar Theory: The Ccontribution of the Medieval Canonists from Gratian to the Great Schism (New York: Brill, 1998).

28. Peterson, “Monotheism as a Political Problem,” 101–104.29. Consider the various treatments of the scholastic method of the Quaestio or dis-

putation, in Brian Lawn, The Rise and Decline of the Scholastic “Quaestio Disputata” with Special Emphasis on its Use in Medicine and Science (Leiden, Netherlands: Brill, 1993), 2–18; George


of legal thinking were developed. For example, as a societas, as a collec-tive juristic identity, enabled the Church to cohere its own identity as a legal entity and give it organizational unity.30 As we can see, the kind of unity described by societas—corporate autonomy—was not itself a radical innovation.31 As Dominique Iogna-Prat has argued, the self-governance of Cluny became a microcosm for papal aspirations of legal unity.32 How-ever, with the investiture contest, the Church pragmatically recognized law as the eminent domain of power.33 The conflict was set in legal terms, no doubt to the advantage of the new systematic skill of canon lawyers.Having introduced it into their pedagogy, the rediscovered Roman law34 helped the Church claim a victory against secular power with the use of the formal principle of association: the Roman societas helped conceptual-ize the autonomy of ecclesiastical law from the secular.

In their attempts to utilize the rational method of the Roman law, the canonists employed the systematic, procedural form of Roman law

Makdisi, “The Scholastic Method in Medieval Education,” Speculum 49, 4 (1974): 640–61. For special emphasis on the use of this method in canon law, see Stephen Kuttner, “The Revival of Jurisprudence,” in Robert L. Benson, Giles Constable and Carol D. Lanhamed, Eds., Renaissance and Renewal in the Twelfth Century (Cambridge, MA: Harvard University Press, 1982), 299–323.

30. Although it was not until Innocent IV, the same pope to burn the Talmud, that the status of juridical persona was legally enacted, the precursors are apparent in Roman law. See Per Samuelson, “On the Evolution of Corporate Forms” University of Illinois Law Review 15 (2005): 22; James A. Brundage, Medieval Canon Law (London: Longman, 1995).

31. To compare the development of Jewish and Ecumenical associations, see Solomon Grayzel, “Jews and the Ecumenical Councils,” Jewish Quarterly Review 57 (1967): 287–311.

32. Cluny is often taken as the best example of the corporate governance to prefig-ure the later identity of the Church. Cluny was at first a monastic centre governed by the Bishop, but developed into a network of affiliate monasteries. See Harold Joseph Berman, Law and Revolution: The Formation of the Western Legal Tradition (Cambridge, MA: Harvard University Press, 1983), 89. Concerning the legal and political significance of Cluny to the growing sovereignty of the apostolic see the bibliography is vast, but Dominique Iogna-Prat’s penetrating study of the contours of Cluny’s ecclesiology and ideology is essential reading. See Order and Exclusion: Cluny and Christendom Face Heresy, Judaism, and Islam (1000–1500), trans. Graham Robert Edwards (Ithaca: Cornell University Press, 2002).

33. The conflict between the papacy and the “divinely appointed” kings was regarding the right of jurisdiction and of authority. The papacy attempted to exert authority over the ecclesiastical realm—the appointment of bishops and local church officials, even the papacy itself—a right traditionally invested in the king. This contest was waged through the legal consultation amongst the clergy itself, and the establishment of the College of Cardinals—the first established, and still extant, body of sovereign identity of Church authority.

34. In 1070, a palimpsest of St. Jerome was found to bear the trace of the Institutes and Commentaries of Gaius. This discovery inaugurated a scholastic turn to Roman law as a methodology of distinction and harmonization, and an ontological grounding of law in rea-son as well as scripture. This point will be developed further in what follows.


as a means of ordering the historically disparate auctoritas of the Church. Hence, they developed a science of legal principles.35 The authority of law was associated with its systematic character and Roman law espe-cially represented authority: it was imperial by definition. Indeed, Roman law was initially perceived, some historians suggest, as a threat to papal authority stemming from former secular political power, namely the role of the emperor.36 However, the logical authority represented by Roman law was quickly recognized in its philosophical and theological scope: its authority lay in its universal character, including an ontological and epis-temological harmony of reason, nature, and law.37 This was the harmony detected by Gratian in the principled classification of the Roman law, and enabled the study of cases, laws, canons, and all the historical data that lay before the canonists in the history of the Church.38 Gratian’s Decretum was an attempt to engage this systematicity by employing conceptual princi-ples of reasoned argument to first distinguish the seeming contradictions among different canons, papal letters, and decretals, and the like, and then

35. Much of the ensuing discussion will focus on the “principle” as the mechanism of resolution of contradiction, identity, sufficiency, and many other synonyms and iterations of the principle. Suffice it for the moment to say that the resolution of contradiction occurs outside of time—that is, the canonists sought the historically abstracted principle unifying two disparate papal bulls or canons, and, through the method of the disputatio, conceived of this principle as exempt from historical conditions of decision.

36. Honorius III, for example, in his papal bull Super Speculam (1219), sought to prohibit the teaching of Roman law at the University of Paris, the intellectual capital of Christianity. The rise of papal authority was such that growing consolidation of legislative authority could not tolerate the civil inclination of the Imperial code. Jacques LeGoff, Saint Louis (Paris: Editions Gallimard, 1996), 113. Similarly, Thomas Kuehn even notes the pos-sible nationalist character of the Roman–Italian–ius commune, see “A Late Medieval Conflict of Laws.” The developments at the University of Paris of 1219 are therefore significant for it is with these events that Louis IX is often seen to have begun the consolidation of his king-dom precisely under the banner of Christianity itself. See Gerard Sivery, Saint Louis et son siècle (Paris: Tallandier, 1983). In effect, this attempt to surmount the perceived challenges present between secular and papal authority (as the rule of Frederick II had begun to dem-onstrate) was a keen political pragmatism. Through the safeguarding of the Roman legal pedagogy, the development of the legal sovereignty continued to be enriched.

37. As we shall see below, it is precisely this confluence that may in fact correspond to the triune God that Peterson believed lacking in any analogue.

38. Anders Winroth has argued that Gratian’s Decretum is actually comprised of two works, a shorter, more succinct early work where Gratian seems less well-oriented in the Roman law and a later edition wherein technical language begins to appear. Winroth, “I don’t believe Gratian’s quotations are the only means of familiarity with a conceptual model.” Nevertheless, Winroth’s study deserves serious consideration for further study. See Anders Winroth, The Making of Gratian’s Decretum (New York: Cambridge University Press, 2004).


solve such contradictions with a principled conclusion. Gratian simply employed the tools of what had been understood in his time as Aristote-lian dialectic.39

Gratian’s method involved overcoming contradiction. His technique deployed conceptual principles to harmonize the legacy of the Church fathers, councils, and papal decretals not historically, but logically.40 The civil procedure of the Roman law provided a method for the study of legal phenomena, imbibing the entire gamut of legal reality, both secu-lar and ecclesiastical.41 Consequently, this process of systematization and

39. As will be discussed in what follows, the translation of philosophical dialectic through the Stoics and later, through the Scholastics and canonists, presumed a certain conflation of apodictic truth and dialectic reasoning, a conflation of Aristotelian logic.

40. In other words, the judicial process developed through the reduction of the oral customs and disparate historical material and supplementing them with written, princi-pled, and deductively determined “codes” (much more could be said about the “codifica-tion” of law, but at the time of Gratian, this is the form of writing of concern); the official exclusion of oral testimony alone, for evidence; the elimination of the Judicial Ordeal (such as an iron poker), for evidence. Finnbar McCauley has argued that the elimination of the ordeal was part of this larger consolidation of ecclesiastical autonomy from the secu-lar power. See Finnbar McCauley, “Canon Law and the End of the Ordeal,” Oxford Journal of Legal Studies 26, 3 (2006): 473–513. The secular justice of the time quickly emulated the ecclesiastical model, with seals and notaries becoming binding signs of rights. But what this process of consolidating and minimalization oral codes and customs reveals is a strik-ing push towards the solidification of tradition. That is, its definability and determinability, which is centralizable when it is objectively represented—having a history of its own—and thus, repeatable. See Franz Wieacker, A History of Private Law in Europe, 172; Georges Duby, France in the Middle Ages, 987–1460 (Cambridge, MA: Blackwell, 1991); Fredric L. Cheyette, “Custom, Case Law, and Medieval ‘Constitutionalism’: A Re-Examination,” Political Science Quarterly 78, 3 (1963): 362–90. S. Reynolds notes that even the “records of pleas, charters, and such laws as there are seem to suggest rather that the practice of secu-lar law in the tenth and eleventh centuries was governed by just that immanence of right, authority of custom, and generally hazy categories that analogies from social anthropology would suggest. If these qualities are better discerned after the twelfth century it is surely because they are then more clearly expressed by more articulate writers, not because they appeared for the first time just when the start of record-keeping and professional jurispru-dence began to make them obsolete.” See Reynolds, “Law and Communities.” See also Susan Reynolds, Kingdoms and Communities in Western Europe, 900–1300, 2nd ed. (New York: Oxford University Press, 1997).

41. There was no singular unifying act of legislation correlating secular and papal authority. The assimilatory process of this intellectual trend was coextensive with the shifts in authority and the consolidating role that the centralization of Christian belief, practice, and authority was beginning to play. This process enveloped secular courts as well. The development of the scholastic method of formal debate concerning propositions in order to systematize and eliminate contradiction along with the rise of canon law also introduced a new form of judicial decision, the inquisitio. Cf. Roger E. Reynolds, The Law of the Church in the Central Middle Ages: Its Creation, Collection, and Interpretation (Kirksville, MO: Thomas


harmonization resulted in the recollection and consolidation of the iden-tity of the Church and its claims to authority.42 Not only did the legal identity of an association, which could now be called a societas, provide an internal coherence for the Church’s legal identity, but so too the role of the Pope within the Church could be articulated with legal conceptual-ism. Thus, from the formal introduction of Roman law, the conceptual scope of law also began to change. Along with the societas came the imper-ans. Whether conscious or not, the role of a single legal authority was now crucial: the papacy had the authority to determine the hierarchy of the Church, for the Church was itself an order of political significance.

But this turn to Roman law also entailed a break with the political and historical context of legal pluralism, which I discussed above, and thus, a break with disparate centres of authority. I believe this shift of consolida-tion can be understood by focusing on points of ascription where papal decisions, beginning with the Gregorian reforms and furthered with Innocent III’s continuations, outline a figure of this new theological poli-tics: this is the concretization of sovereignty.

The Methodology of Principle

In the wake of the Concordat of Worms—the settlement of the investi-ture contest between the papacy and the Holy Roman Empire in 1122—yet another political consolidation occurred with the Gregorian reform. As I noted above, the Roman law43 introduced a new conceptual model for the canonists. Significantly, canon lawyers now directed their atten-tion toward a new institutional and conceptual role for the papacy.44 The

Jefferson University Press, 1999), Susan Reynolds, Kingdoms and Communities in Western Europe, 900–1300, 2nd ed. (New York: Oxford University Press, 1997).

42. Jorg Henning Peltzer, Canon Law, Careers and Conquest: Episcopal Elections in Nor-mandy and Greater Anjou, C.1140–C.1230 (Cambridge: Cambridge University Press, 2008); Edward Peters, Limits of Thought and Power in Medieval Europe (Burlington, VT: Ashgate, 2001); Reynolds, The Law of the Church.

43. See Peter Stein, Roman Law in European History (London: Cambridge University Press, 1999); Brundage, Medieval Canon Law.

44. The claim that sovereignty emerged in a particular historical figure of papal claims to authority is not revolutionary. See Bethke-Elshtain, Sovereignty, 33ff.; Andreas Meyer, “Papal Monarchy,” in Carol Lansing and Edward D. English, eds., A Companion to the Medi-eval World (London: Wiley-Blackwell, 2009), 372–96; James Sheehan, “The Problem of Sov-ereignty in European History,” The American Historical Review 111, 1 (2006): 1–15. It has also been argued that the connection between the Investiture contest and the declarations of sovereignty are palpable, for example, Bruce Bueno de Mesquita, “Popes, Kings and Endogenous Institutions: The Concordat of Worms and the Origins of Sovereignty,” Inter-national Studies Review 2, 2 (2000): 93–118.


Pope became a focal point of legal decision and the seat of authority. With the Gregorian reform, the Church gained greater coherence in the uni-fied authority of the Pope as legal and spiritual decision-maker.45 As legis-lator, the Pope’s sovereign legal authority combined the historical identity of the apostolic succession with a new era of legal identity for the apostolic see. Conceptually speaking, legal representation of papal authority forms the symbolic matrix into which the person of the Pope must enter, mate-rializing what is a legal fiction of pre-existent historical sovereignty of the papacy within the body of law.46 That is, the papal sovereign is the re-imagination of legal and logical continuity of the Church’s authority.

But these reforms, both Gregory’s and especially his greatest successor, Innocent III’s, were given their greatest coherence in the legal doctrine emerging in Bologna and Paris. The papacy of Innocent III brought about a new understanding of the role of the Pope and the curia in regulating first ecclesiastical and, then, social order.47 Innocent III accentuated a papal consciousness of its own involvement in the machinations of law and its sovereignty.48 His influence upon the canonists is undeniable and his lan-guage is reflected in that of the glossators to follow him. For by echoing Eugenius III, and Peter Damian before him, he expressed the juridical signification of the “vicar of Christ” or “vicar of God” within the wider vocabulary of the Church. By definition, the designation “vicar” was not itself novel, as it had existed from patristic times as a designation primar-ily for kings and emperors, but Innocent’s innovation was in claiming that

45. For an analogy with international personality in the legal sovereignty of the Papacy, see Robert John Araujo and John A. Lucal, “A Forerunner for International Organizations: The Holy See and the Community of Christendom-With Special Emphasis on the Medi-eval Papacy,” Journal of Law and Religion 20, 2 (2004–2005): 305–50. See especially 331ff; John Robert Aurajo, “The International Personality and Sovereignty of the Holy See,” Catholic University Law Review 50 (2000): 291–360. Araujo seeks to demonstrate how papal sover-eignty differs from the traditional legal definition of state sovereignty. However, Araujo’s definition of sovereignty hinges largely upon the role of a state within international law and therefore assumes a fundamentally modern conception of the state.

46. For a discussion of the ritual elements involved in conceiving the papal body as both spiritual and material, and its conceptual link to the vicar of Christ, see Augustino Paravicini Bagliani, The Pope’s Body, trans. David S. Peterson (Chicago: University of Chi-cago Press, 2000), especially 58ff.

47. For an account of how the canon law gave coherence to social, and eventually political, order, see Brian Tierney, Religion, Law and the Growth of Constitutional Thought: 1150–1650 (London: Cambridge University Press, 2008).

48. Kenneth Pennington disputes the claims that Innocent was a great lawyer in his own right, while acknowledging the role of legal consolidation his papacy did play, in Pope, Canonists, Texts, 1150–1550 (Brookfield, VT: Variorum, 1993).


Christ had given the Pope this authority as a legal personality on earth.49 The Pope became the juristic persona of Christ.50

As legal sovereign, the juristic persona of the papacy represents more than simply the head of an association; it embodies the sovereign within the law, in the temporal, spiritual, and rational spheres.51 But as the vicar of Christ, the legal representation of sovereignty becomes a divine represen-tation as well as a juridico-political one: the human and divine combina-tion of papal will provides an ontological-legal authority to determine the meanings of scripture and the judgments of law.52 Hence, theology and politics operate with the same principle of representation: the legal repre-sentation of the sovereign.

Conceptually speaking, the legal representation of sovereignty estab-lishes a new source of the law, and stems from the lex animata of the Roman emperor, or the authority of law in the person of the sovereign. This lex animata or living law is akin to what E. R. Goodenough describes as a Pythagorean element that may be in Philo and other Alexandrian Church

49. As Kantorowicz has almost exhaustively demonstrated, the term vicarius Christi underwent a transformation from the designation of kingly potestas to an exclusively papal meaning in light of the papal revolution and the introduction of the Roman law. Indeed, Kantorowicz also notes that the role of the secular king also took on a more exclusively legal contour in relation to the role of the papal vicar, insofar as the latter was an emphatically juridical definition. See The King’s Two Bodies, 59, 89–93.

50. Pennington, Pope, III, 4. Innocent III represents this focal point due to his attempts to intervene explicitly in the secular sphere. See John Clare Moore, Pope Innocent III (1160/61–1216): To Root up and to Plant (New York: Brill, 2003). Brian Tierney notes, for example, that in Venerabilem, decretal 75, Innocent puts forward his claim to decide between competing factions for the imperial throne—between Otto of Brunswick and Philip of Swabia, employing “a whole body of canonical rules relating to the confirmation of Episco-pal elections and simply assuming that they applied to secular elections also.” See Tierney, The Crisis of Church and State, 129.

51. Consider the complexity of the temporal and ecclesiastical relationship that both kings and bishops navigated in and around the investiture conflict, particular in Ernst Kan-torowicz’s analysis of both Ivo of Chartres and the Norman Anonymous. See The King’s Two Bodies, 46ff.

52. The Pope therefore had two complexes of authority—human and divine—united in a juridical persona. With this ontological combination, Innocent anticipated much later legal developments, investing an individual personality with legal significance. Prior to this declaration, the Pope was considered the vicar of St. Peter. For a detailed chronology of this changing definition of the “body” of the Pope as well as the shaping of the representation of Christ in the papacy, see Bagliani, The Pope’s Body; see also Berman, Law and Revolution, 51; Pennington, Pope; Tierney, The Crisis of Church and State; John M. Powell, trans. The Deeds of Pope Innocent III (Washington, DC: Catholic University of America Press, 2007); idem, Innocent III: Vicar of Christ or Lord of the World? (Los Angeles: University of California Press, 1963).


Fathers under the spell of Hellenism: the nomos empsuchos, the embodied or ensouled law.53 As Kantorowicz has described, the concept of the lex animata was prominent among medieval secular kings as well, inherited from Roman imperial concepts.54 In this context, the living law is a prin-ciple of rational identity, logical determination, and consistency. Thus, it would seem that Roman law contains this concept of the living law in nuce, whereby the sovereign manifests as the legal principle, grounding the rationality of the legal system.

The legal representation of sovereignty can therefore be understood as a rationality of law expressed in the principle of decision, or the dis-tinction. This methodology of the principle reflects an attempt to rein-terpret historical difference according to legal continuity of sovereign institutional identity. It is therefore both a historical hermeneutic as well as a synchronic, rational-logical one. For example, in order to synthesize and harmonize the historical basis of the Church,55 the canonists appealed to principle—excluded middle, non-contradiction, or what the scholas-tics taught as the Quaestio Diputata resolving contradictions and conflicts.56 The principle, or the “axiom” of the Scholastics, harmonizes heterogene-ity and contradiction. The identity and consistency of a principle upon which to ground a legal decision provided canonists like Gratian with a possible reconciliation of historical and conceptual difference. That is, the

53. E. R. Goodenough, “The Political Philosophy of Hellenistic Kingship,” Yale Clas-sical Studies I (1928): 51–103, as well as “Kingship in Early Israel,” Journal of Biblical Literature 48, 3/4 (1929): 169–205.

54. As Kantorowicz points out, John of Salisbury envisions a prince whose persona publica takes on the Christlike “twinship” of embodying the justice instituted through law. The Ruler is “…in good mediaeval fashion, and yet in a new juristic sense—the very idea of Justice which itself is bound to Law and yet above the Law because it is the end of all Law. Not the Prince rules, but Justice rules through or in a Prince who is the instrument of Justice and, though Salisbury does not quote Justinian to that effect, is at the same time the lex animata.” Kantorowicz, The King’s Two Bodies, 96–97.

55. See, for example, Carlo R. M. Redaelli, “The Adoption of the Principle of Codi-fication: Ecclesiological Significance with Special Reference to Reception,” Jurist 57 (1997): 249–84.

56. Though explicitly formulated by Leibniz in the sense of the nihil est sine ratio, the “principium” was a foundational concept for Scholastic methodology, leading to the reso-lution of contradiction. Considered “dialectical,” scholastic reasoning sought the truth and justice of law through the distinction, which is based on a principle of non-contradiction. Hence, as such apodictic truths were distinguished through a dialectical method. This con-flation of Aristotle became the basis of the medieval principium: it is both non-contradictory and identical with origin. See Reiner Schurmann, Le Principe d’anarchie: Heidegger et la ques-tion de l’agir (Paris: Editions de Seuil, 1982) translated and enlarged as From Principles to Anar-chy: Heidegger on Being and Acting (Bloomington: Indiana University Press, 1987); Berman, Law and Revolution, 140–41.


“principle of decision” is not just a moment in professional legal practice, it is a principle of decidability; a decision will always be made. This is the sovereign prerogative.

Even more than the resolution of contradiction, the distinction or prin-ciple within law enables the proper hierarchy of authority to be grounded. Thus, Gratian clearly outlines the order of norms in ecclesiastical and imperial laws, such that in the name of Gregory of Nanzanius, he con-cludes that

…the enactments of princes are subordinate to ecclesiastical ordinances. But whenever these are not opposed to evangelical and canonical decrees, they are worthy of all reverence.57

While Distinction 10 of the Decretum outlines the relationship between ecclesiastical and imperial law, according to Gratian’s classification, the natural law is the law of God found in scripture. Distinction 10 opens by subordinating both ecclesiastical and secular ordinance to the natural law, which the glossators infer as the hierarchy according to the principle of natural law, since “there is nothing in the canonical scriptures that is not divine ordinance, divine ordinance is consonant with nature.”58 Natural law thereby serves as the principle under which law can be classified, such that all historical custom or imperial ordinance is subject to the Church. Hence, as Gratian then writes in the name of Isidore, “Let practice yield to authority; let ordinance and reason vanquish bad practice.”59 Being the source of authority for the canons and the law, the apostolic see becomes the source of their rationality and legitimacy, but only to the extent that the source exceeds their scope. In other words, the sovereign authority of the papacy bestows the force of law to the conciliar canons, to the rights and customs of the Church, and to the power of bishops, which the Glos-sators interpreted to mean that “Papal authority is plenary. That of other bishops is partial because they are called to a share in responsibility, but not the plenitude of power.”60 The papacy represents the rational source of law, custom, and authority, to which all other practices, customs, and sec-ular enactments are logically derivative.

For Gratian, legal contradiction simply could not exist. The strength of Roman law was its rationality and conceptual form. Thus, the confor-mity of law to reason served Gratian as a rule for calculation, determining

57. Gratian, Decretum, D. 10, par. II.58. Gloss. Ordn. Decretum. 9, c. 11, s.v. “Cum ergo.” Translation in Gratian: The Trea-

tise on Laws, Decretum DD. 1–20, trans. Augustine Thompson, O. P., with the Ordinary Gloss, trans. James Gordley (Washington, DC: Catholic University of America Press, 1993).

59. Decretum, D. 11, c. 1.60. Decretum, D. 11, c. 2, Gloss. Ordn. s.v. “plenitude potestatis.”


which laws were to be recorded, and which were simply not worthy of recording.61 But this legal order was authoritative precisely because of its participation in a higher rational order. The rationality of legal principles was the definition of the natural law.62 Gratian, followed by Aquinas and Duns Scotus63 thus elaborate the “principle” as a natural distinction.64 The principle of decision, the sovereign logic of constitution/preservation,65 is

61. Berman, Law and Revolution, 145.62. Aquinas sought to rationalize the law according to the principle of reason. Granted,

for Aquinas the divine governance of all that is within the purview of human knowledge is through what he calls “divine reason.” Indeed, the divine reason that thinks all eternal forms in itself contains the basis for human cognition of these forms. That is, through the participation of human reason in the divine reason, there exists a conjunction (much like Averroes claims) making knowledge of God’s will possible. As a basis for moral and legal knowledge, this conjunction is what Aquinas calls synderesis, or conscience. As an ontolog-ical element, however, this power of moral knowledge is established and conditioned by the divine reason, which knows the truths and goods of man eternally. See Summa Theo-logiae, Q. 91, article 1, reply obj. 1: “Those things that are not in themselves are exist with God inasmuch as they are foreknown and preordained by Him, according to Rom. 4:17, “Who calls those things that are not, as those that are.” Accordingly, the eternal concept of the divine law bears the nature of an eternal law insofar as it is ordained by God to the gov-ernment of things foreknown by Him.” Ibid., reply obj. 3. It is possible for Aquinas to dis-tinguish between the eternal law, the natural law, the human law, and the divine law. The eternal law, however, is the basis and condition of all teleological order; that is, each crea-ture gains its proper end and purpose through the “eternal law…being imprinted on them.” The eternal law is the ontological substructure of all other law, human, natural, and divine. Thus, Aquinas claims that the eternal law is identical with God’s being—a being identical with the Good—such that “the law implies order to an end…But the end of the divine gov-ernment is God Himself, and His law is not distinct from Himself. Wherefore the eternal law is not ordained to another end.” Hence, Aquinas makes the natural law a completion of the eternal law, albeit, only in terms of the rational identity of the one with the other. The “natural law is nothing else than the rational creature’s participation of the eternal law” (Ibid., art. 2).

63. Ironically, the degree to which Catholic dogma has incorporated Scholastic legal principle into its conception of moral intellectualism can be seen even in contemporary accounts. Consider Pope Benedict’s Address at Regensburg. See also J. B. Schneewind, The Invention of Autonomy: A History of Modern Moral Philosophy (New York: Cambridge Univer-sity Press, 1998), 19–23.

64. Stephen John Gabrill, Rediscovering the Natural Law in Reformed Theological Ethics (New York: Erdmans, 2006), 57ff; Brian Tierney, The Idea of Natural Rights: Studies on Natu-ral Rights, Natural Law, and Church Law, 1150–1625 (New York: Erdmans, 1997); Natural Law Theory: Contemporary Essays, ed. Robert P. George (Oxford: Clarendon Press, 1997); Jean Porter, Natural and Divine Law: Reclaiming the Tradition for Christian Ethics (New York: Erd-mans, 1999), 66.

65. In theoretical terms, the sovereign decision has been described as a juristic mode that originates normativity. Carl Schmitt conceived of Sovereignty as an exceptionalism of decision—the decision is outside the order it founds. See Schmitt, Political Theology, 32–35.


found at work in the scholastic logic of quaestio, disputatio, articulus, summa.66 This medieval pedagogy of resolving contradictions assumes teleological and apodictic certainty. Such certainty, in turn, presupposes a sufficient reason for the method of dialectic prior to its commencement. As the work of resolving contradiction it is, therefore, a re-founding of the statements and decisions of Popes within a newly provided context.67 It is a repeti-tion for the sake of finding their common origin. It is the triumph of the ius commune and its consolidating unity over the ius proprium and its cus-tomary practice, and of the unity of the sovereign over the plural.68 While for Gratian, principle represents a hermeneutic of historical continuity, the sovereign legal principle represents an atemporal and abstract identity: it represents transcendence as the identity of reason, nature, and law.

Rational Order and Legal Order

The rationality of law became the main focus of the Scholastics and deter-mined for them the pedagogy and conceptualization of the law. The renaissance of Roman law in the twelfth century represented the synthe-sis and systematization of the relationship between religious practice and reason.69 Through juristic science, law was redefined in purely rational

But the decision is always imminent to the system it exceeds—this is the paradox of sov-ereignty. Schmitt’s own claim that decision was the exception to the rule and the found-ing of the norm was a theory he claimed to have inherited from Hobbes. Quoting Hobbes, Schmitt maintains that it is the Sovereign’s decision, as an exception to the legal order, which guarantees the veracity of law: “auctoritas, non veritas facit legem” (authority, not truth, fashions law). It was also in the midst of the investiture contest that Gregory VII himself argued that the Pope’s sovereign authority was derived from God alone, hence, from aucto-ritas alone. See Wilfried Hartmann and Kenneth Pennington, The History of Medieval Canon Law in the Classical Period, 1140–1234: From Gratian to the Decretals of Pope Gregory IX (Wash-ington, DC: Catholic University of America Press, 2008).

66. It is interesting to note that the method employed by Abelard in sic et non, which was also employed by Ivo of Chartres, indeed raised points of contradiction but Abelard was not intent on solving them, and was accused of encouraging skepticism—an accusation of heresy, of which Abelard was tried for twice in his life. See Abelard: A Medieval Life (Lon-don: Wiley-Blackwell, 1999); George Makdisi, “The Scholastic Method in Medieval Edu-cation,” Speculum 49, 4 (1974): 640–61.

67. As a consolidating principle, anything could become “spiritual” and thereby fall under the legal jurisdiction of the Pope. See John W. Dyson, “Medieval Rulers and Political Ideology,” in Carol Lansing and Edward D. English, eds., A Companion to the Medieval World (London: Wiley-Blackwell, 2009), 354–71.

68. See Bellomo, The Common Legal Past of Europe, 194.69. See Berman, Law and Revolution, 132; Berman, Faith and Order: The Reconciliation

of Law and Religion (Atlanta: Emory University Press, 1993), 268; Kuttner, “The Revival of Jurisprudence,” 310.


terms.70 Hence, whereas custom (the ius proprium) once achieved status within the world, now only rationality prevailed. Rationality was adopted as the true form of law. Hence, Gratian opened the Decretum by echoing the Institutes of Gaius, stipulating the order of law: divine law and custom, where the former represents the ius gentium and the latter is the analogue of the ius civile. The Divine, however, serves as the ontological ground of all rationality to the law, hence, Gratian’s citation of Isidore’s Etymol-ogies in order to better organize our recognition of the source of law: Jus is the genus of the species lex, whether human or divine.71 But insofar as the divine law is also called “morality,” Gratian establishes the Decretum as a rational standard by which even the Codex of Justinian could be judged.

Likewise, such rationality can be seen in the idealized unity of the ius commune.72 Though an attempt to acknowledge diversity of law, which took the title of ius gentium in Roman law, this concept of universal legal valid-ity actually harmonizes law according to a hegemonic principle: the law is universal because of its source in the immutable authority of papal can-ons. That is to say, the papacy represents “truth” in triumph over “custom” since, “Christ is the truth, we ought to follow truth rather than custom, because reason and truth always void custom.”73 Hence, the Glossators, likely Johannes Teutonicus, interpret plenitude potestatis, the full author-ity of the Pope, to override custom and consolidate the unitary power of the papacy.74 Gratian likewise insisted that the two swords of power dele-gated by Christ no longer represented the split between papal and impe-rial authority, but that the papal origin of authority enabled power to be delegated.75

Consequently, “secular” law also became subject to the divine, and insofar as the canonical law pertained to ecclesiastical office, this law

70. Berman, Law and Revolution, 129.71. Decretum, D.1. c. 1.2. The un-enacted law (ius) is thus relativized with lex as log-

ically implicated by the natural and eternal laws of God (for whom, it seems, all law is enacted law), that is, canonical. See Barry Nicholas, An Introduction to Roman Law (Oxford: Clarendon Press, 1962).

72. The Ideal and “True Law” of the Scholastics was conceived as an elaboration of the ius gentium of the Roman law—the basic law of nations that all peoples appeared to share in common. Cf. Berman, Law and Revolution, 123, 154.

73. Decretum, D. 8, c. 6, in the name of Augustine, “On Baptism against the Donatists,” III, v.

74. Decretum, D.11 c. 2 v. s.v. “plenitude potestatis”. See n. 58 above. Cf. Randall Lesaf-fer, European Legal History: A Cultural and Political Perspective, trans. J. Arriens (New York: Cambridge University Press, 2009), 217. See also Kenneth Pennington, “Law, Legislative Authority, and Theories of Government,” in J. H. Burns, ed., The Cambridge History of Medi-eval Politcical Thought, c.1350–c.1450 (New York: Cambridge University Press, 1988), 434.

75. Decretum, D. 96 c. 10; Cf. Lesaffer, European Legal History, 216.


supersedes the former in terms of ontological force. Indeed, for Gratian, legal decision is cast in terms of absolute succession, such that “In the case of temporal ordinances, although men pass judgment on them when they are being instituted, a judge may not pass judgment on them after they are instituted and confirmed but only according to them.”76 Through the suc-cessive glosses to the Decretum one can begin to detect the growing ratio-nalization of papal sovereignty as a temporal and rational principle, where, in the language of the Glossators, we see a clear priority of both rational and sovereign decision as the confluence of authority:

which is to be more to be adhered to, the apostolic decision or that of all the bishops? It might seem that of all the bishops because the world is greater than the capital city. D.93.c.24. It may be argued from C.35 q.9 c.5 that the decision of the pope prevails for even the error of a sovereign (principis) makes law. Dig. 33.10.3 (in fine).77

The law is sovereign insofar as it is identical with the will of the papacy. Even “error” on the part of the Pope “makes law” since it is nevertheless the law in principle.

As we can see in the historical developments of this era, the very idea of “law” is imputed with a power that extends beyond the recorded deci-sions of Church fathers and popes, emperors, and theologians, in rela-tion to all circumstances and ritual questions.78 “Law” signifies a source of determination of actions—informed by the Cluniac model of Benedictine order, discipline, and piety79—as well as a reason for justifying authority. The law became a political force in social life. It is thus in the middle ages that the political scope of systematic law and legal science were theologized into a new political order.

What is achieved through the designation of the sovereign principle, and primarily carried on through the Church after the thirteenth century, is that the papal principle becomes an empirical unification of voluntas and intelligens, will and thinking, of nature and spirit, in the person of the Pope. With this empirical will of the sovereign, reason, law, and nature could partake of an immanent structure of willing actions and determining laws. This immanent structure now grounded the purpose of law in the ori-gin of law, the sovereign, and both origin and purpose became identical. But this Romanitas of the law, of the sovereign, was also the rationaliza-tion of law. Hence, the lingering question, with which I began this article,

76. Decretum, D. 4. par 3. c. 3.77. Notwithstanding Decretum, D. 10. c. 8–10. And the ambivalences therein concern-

ing “pontiff ” as either a secular emperor or the Pope.78. In this respect, consider Decretum, D. 16, Dicta Gratiani ante c. 1.79. Iogna-Prat, Order and Exclusion.


is whether this theologization of a political form of law is not at the same time an introduction of what begins as a civic theology foreign to Christi-anity. The Roman political model of sovereignty requires law and princi-ple as its formal basis. But law, particularly the statutory form of law, was a source of ambivalence in early Christian theology. It therefore stands to reason that we ask after the meaning of law in the history of sovereignty: is the Roman meaning of law, with its sovereign principle, the only inter-pretation of law available to Christian political theology? Indeed, is law, in its basic contours, fundamentally theologico-political?

As I mentioned above, Erik Peterson noted that the Capodocians were deeply confounded by the Trinitarian implications of monarchy and sov-ereign rule.80 Accordingly, if papal sovereignty was to adopt the legal form of Roman sovereignty—the law as a self-authorizing nature and rationality—then the law would have to be baptized, as it were. Thus, does Gratian record the words of Leo IV for the sake of a new injunc-tion: “…the Roman law, inasmuch as it was previously in force despite all adversaries and remembered to have been suspended for no human per-son, [must] now enjoy its proper strength and force.”81 The theologiza-tion of the Roman law is the attempt to declare the sovereignty of the law itself. That is, the law of Rome was now the law of the Church. Indeed, the law “in force” was the political force of sovereignty.

But as I noted at the outset, the theologization of politics is the purview of Roman sovereignty. That is to say, however, that sovereignty is a prin-ciple of empire, of ruling with a single principle that erodes difference. Hence, even the sources of Roman sovereignty are themselves found to begin in a re-appropriation of Greek political philosophy and its own legal thought. It would seem that the very transmission of the theologico-political sovereign performs the kind of force and violence of the sov-ereign principle. In other words, while the Romanitas of sovereignty is found in law, the sovereignty of Rome is the re-imagination of law itself. Therefore I will next consider how this translation of law into sovereignty, from Greek into Latin, obfuscates the relationship between the ideas of “nature,” “reason,” and “law.” I argue that the theological expression of sovereignty, of Roman civic religion, demonstrates the imperial theology

80. Peterson, “Monotheism as a Political Problem,” 103. See also William G. Rusch, The Trinitarian Controversy (Philadelphia: Fortress Press, 1980), 23–7. Gregory of Nanzian-zus is Peterson’s main source for this argument against monarchism of the trinity; however, Gregory maintains the coherence of mind with the triune is a characteristic of the divine. See Third Theological Oration, in The Trinitarian Controversy, 132.

81. Decretum, D.10.c.13. Leo IV was requesting of the emperor Lothar that the custom-ary or regional practices of “Romans” be employed. Hence, not the systematic law of the Code of Justinian, but the Pseudo-Dionysian canons or the like.


of Rome and that political law, that is, law based upon the principle of deci-sion, is structurally imperial.

The Tyranny of the Sovereign Principle: Nature, Law, and Reason

The idea of the law as sovereign unto all, in Pindar’s fragment, should not be confused with the idea of sovereignty in law. For as I have been suggest-ing, the latter assumes the sovereign as the principle grounding the law, as well as the authorized exception to the law. By contrast, what exactly Pin-dar’s fragment means (nomos basileus)82 has been a subject of dispute both philologically and philosophically.83 While Herodotus’ Histories seems to demonstrate that the phrase connotes a kind of legal pluralism and relativ-ism, that the nomoi of nations are particular to them, Plato’s discussion in book 10 of the Laws suggests a different reading.84 Scholarship on ancient Greek law suggests that the Greeks had no concept of law in principle; no concept of empire, as it was expressed in Roman law.85 But whether the

82. “Nomos, Sovereign of all, of mortals and immortals, leads with the strongest hand, justifying the most violent. I judge this from the works of Hercules” (Νόμος ὁ πάντων βασιλεύς\ θνατῶν τε καὶ ἀθανάτων\ ἄγει δικαιῶν τὸ βιαιότατον\ ὑπερτάτα χειρί). For a philo-logically astute consideration of how Pindar dissociates justice (dike) and nomos, see Poulhe-ria Kyriakou “The Violence of Nomos in Pindar fr. 169a,” in Materiali e discussioni per l’anallisi dei testi classici, no. 48 (2002): 195–206.

83. Victor Ehrenberg, Die Rechtsidee im frühen Griechentum: Untersuchungen zur Geschichte der werdenden Polis (Leipzig: S. Hirzel Verlag, 1921), 114ff. See Plato, Gorgias 484b; Protago-ras 337dI–e2. In these dialogues, it seems that nomos and physis are always opposites. But the question is whether this is not the sophist portrayal that is being undone by Plato. Herodo-tus takes the position of the Sophist, assigning to each nation its own custom, hence, when Darius asks the Greek and the Indian their customs with the dead, the quote from Pindar serves to justify this difference according to nomos as custom (Histories 3.38.4). See also Giorgio Agamben, Homo Sacer: Sovereign Power and Bare Life, trans. Daniel Heller-Roazen (Stanford: Stanford University Press, 1998), 30–9. Nevertheless, Plato begins to dissolve the opposition, as I note below. See Laws 690c.

84. It is clear from the Laws that a certain kind of rationality—even a cosmic rationality—is the source of how the perfection of virtue is the goal of law as well. How-ever, a more detailed study of the idea of “reason” in this Platonic work would be necessary. For an example of such a consideration see Benardete’s discussion of the perplexing theol-ogy of the Stranger, wherein a tension between Clinias’ understanding of mind over and against that of the Stranger’s understanding of Soul is an inconclusive source for claiming coherence between the Stoics and Plato. Seth Benardete, Plato’s Laws: The Discovery of Being (Chicago: University of Chicago, 2000), 304–306.

85. As a rather young field of study, “Greek Law” is often debated in its very title, given the disparity of particular poleis, fuelling some debate among scholars of the older German school, influenced as they were by the historicist trend in German legal studies. Consider


sophistic and pre-socratic tendency to distinguish between nomos and phy-sis is the concern, what law means for legitimate rule was nevertheless not within the purview of the principle of sovereignty, as I have been explor-ing this concept.86 Greek law was more diffuse in its substantive content, relying upon a more conceptually abstract notion of the nomos over and against the concreteness of physis. In any event, whereas Roman law in the formulary period87 would be more concerned with the specification of remedies and their formal principles to be brought as an action, Greek law appears more concerned with legal process than with prescribed con-tent or definitive remedy.88

Philosophically speaking, however, these two spheres of form and con-tent, nomos and physis, have a much more complicated relationship.89 In Plato’s Laws, law relates to virtue, an end and a good that “inner” nature as well as social nature might seek. The idea of the Good is the end of law, but not its principle. For the Good is beyond the being of the idea.90 The

for example, Ludwig Mitteis’ claim that basic “juristic conceptions” or elements identify what Hans Julius Wolff, in a Savigny-like rhetoric, describes as a geistige Gemeinsamkeit uni-fying the various poleis. Beginning with Moses Finley, this “unity” thesis has been criticized quite astutely. Finley writes, “If we take as nodal points the Homeric poem, Gortyn, Athens and the earliest Greek papyri from Ptolemaic Egypt, I am unable to discover a single com-mon ‘basis conception’ or ‘principle’…” (quoted at 30 in Gagarin; see below). However, this is not to claim that the family resemblance of “law” as an idea of order and purpose is absent. Michael Gagarin argues quite persuasively for the “unity” of Greek law, albeit from the vantage of a drastically different conception of law. See “The Unity of Greek Law,” in M. Gagarin and D. Cohen, eds., The Cambridge Companion to Greek Law (New York: Cam-bridge University Press, 2005), 29–40, where he emphasizes the positivity of law, in partic-ular poleis, comparing Athens and Gortyn in particular.

86. On the nomos-physis relationship, see Felix Heinimann, Nomos und Physis: Herkunft und Bedeutung einer Antithese im Griechischen Denken des 5 Jahrhunderts (Basel: Verlag Friedrich Reinhardt, 1945, repr. 1965).

87. The age of classical Roman law, wherein the Edict of the Praetor would provide formal remedies for civil action. See Nicholas, An Introduction to Roman Law, 27; 193ff.

88. Gagarin writes: “Greek laws, for example, at least those found at Athens and at Gortyn, devote considerable attention to procedure and show less interest in setting pre-cise penalties for offenses. Most cases, moreover, are freely decided by judges or juries after hearing the pleadings of the litigants, and the use of automatic procedures such as oaths is relatively rare” (“The Unity of Greek Law,” 34).

89. See C. C. W. Taylor, “Nomos and Phusis in Democritus and Plato,” Social Philoso-phy and Policy 24 (2007): 1–20.

90. In the Republic, the Good beyond being is a figure of conditioning, of the Good as condition of all being. The Good is the basis of method, of cognizing and judging as a condition and object of knowledge. Consider Republic 510b: “in one part of it [intelligi-bility] a soul is compelled to prophesy the search out of hypotheses not for a beginning, but for an end, while in the other part it makes its way to a beginning beyond founda-tion; beginning with hypotheses and without the likenesses and images of the other part,


notion of an authority of law that derives its force from the political sov-ereign is potentially aligned with tyranny.91 In the Laws, at first glance it seems that the good may only be achievable through the goods of virtuous education—a necessity of politics. Cultivating justice and being ruled by justice are thus goods that lead towards the possibility of a good law. But that does not mean that law is without method or force. Rather, “[t]he force exerted by law is appropriate (καλλίστη), and one should always co-operate with it, because…‘calculation’ is a noble thing, it is gentle, not vio-lent, and its efforts need assistants, so that the gold in us may prevail over the other substances.”92 Law has the force (ἀγωγῆ) of calculation or reck-oning (λογισμοῦ), which is considered appropriate (or beautiful) (καλοῦ) because it is gentle and not violent (πρᾴο δὲ καὶ οὐ βιαίου). Reckoning and calculation condition a judgment that does not abide by the violence of necessitation, as does decision. Reckoning (λογισμός) is a consideration of multiple forces, of variability, and of deciding on how to initiate the vir-tuous, how to correlate nature and reason, virtue and action. It is distinct from κρίσις, the assertion of definite decision between two stable choices. Rather, the judgment of logismos is a fluid parsing, an estimation and hence a hesitation without regard for definite quantities. It interrupts nature and reason, rather than harmonizing them. For Plato, the rule of law is related to this pliant, fluid deciding. For the rule of law is a “natural” rule, a force that is found within us:

[W]e have these emotions in us, which act like cords or strings and tug us about; they work in opposition, and tug against each other to make us perform actions that are opposed correspondingly; back and forth we go across the boundary line where vice and virtue meet. One of these drag-ging forces…demands our constant obedience, and this is the one we have to hang on to, come what may; the pull of the other cords we must resist. This cord, which is golden and holy, transmits the power of “calculation,” a power which in a state is called public law (koinon nomon); being golden, it is

by concepts themselves, it orients this bringing-forth a ground.” Allan Bloom trans., the Republic (New York: Basic Books, 1991), translation slightly modified. The two modalities of the Good are “sovereign over the intelligible genus and scope [and] sovereign over the visible” (καὶ βασιλεύειν τὸ μὲν νοητοῦ γένους τε καὶ πότου δ᾽ αὖ ὁρατοῦ, Republic, 509d). This is the significance of the Helios parable in the Republic: the natural sovereignty of the Good is the hypothesis for judgments and knowledge, which bring-forth the normative concept of judgment in time. Consider Leo Strauss’ claim that the political knowledge of justice in the Republic is precisely not attainable by human reasoning would be consonant with such a reading. See The City and Man (Chicago: University of Chicago Press, 1964), 137.

91. See for example, Aristotle’s comments at Politics, Bk. III, ch. 6-13 and Bk. V, 11–14.92. Laws 645a.


pliant, while the others whose composition resembles a variety of other sub-stances, are tough and inflexible…93

The power of calculation and reckoning (logismos) is the power of pub-lic law when it corresponds to an internal nature; a force that is in itself natural, without the violence of krisis, and fluid because it is always in motion. In this respect, calculation is a decision without regard to num-ber, a hesitation, and so an attempt to hypothesize the good for the com-mon practice.94

Breaking with sophistic tradition or with Herodotus’s understanding of Pindar,95 Plato claims the rule of law is itself according to the natural (κατὰ φύσιν), the νόμος sovereign to the willing (νόμου ἑκόντων ἀρχὴν) and not produced out of violence (οὐ βίαιον πεφυκυῖαν).96 Hence, in response to Pindar, Plato responds by asserting that law as an arkhe of natural rule is sovereign, but not a violence that rules according to the force of a tyrant; it is not a distinction that cuts like a knife but, pliant as it is, it bends back and forth. It is not a principle of sovereignty. Thus the “natural” rule of the nomos suggests a different kind of nature, which may be consonant with the idea of the Good and its hypothesis.97 At its core, the natural power of calculation is associated with the inner struggle of the virtues. In turn, the Good reemerges as a hypothetical figure that public law also seeks. The sovereignty of law is therefore a force that seeks to account for reckoning itself, a “[r]eckoning (λογισμός), by which we judge the relative merits of pleasure and pain, and when it is expressed as a public decision of state (δόγμα πόλεως κοινὸν), it receives the title ‘law’ (νόμος).”98 Law is a public and common hypothesis of the relative good for society, a hesitant decision. Law is a public reckoning of emotion and reason, of virtue, and the attempt to give an account (λόγον διδόναι) of the hypothesized good.

93. Laws, 644e–645a.94. Laws, 645a.95. I will return to this in what follows.96. Laws, 690c.97. The striking comparison to note between the Republic and the Laws is that the for-

mer exhibits the character of many Platonic dialogues, leading to the soul and Being as the highest idea while some scholars have argued that the Laws, by contrast, does not exhibit this “idealist” sense of Being. Consider Seth Benardete’s description of the Laws as a dis-covery of Being through becoming itself, in Seth Benardete, Plato’s Laws. Whether or not the theory of ideas is systematically related, Plato nevertheless suggests that the ideal law is nevertheless of a character of fluidity that we may not at first expect from an eternal form. Hence, the relationship between the Good and the laws would have to be interrogated in order to truly consider Benardete’s challenging reading. A more expanded study of this aspect of Platonic legal theory is warranted, but is beyond the scope of my present concern. It is, however, a theme that must be carefully considered in any account of legal theory.

98. Laws, 644d.


This would seem to be the natural sovereignty of the good, produced by either “a god or from one who knows.”

In contradistinction, sovereignty in law assumes the ground of deci-sions made in advance, of law always in principle, which Plato would apparently consider tyrannical. This usurpation of the “natural sover-eignty” of law rationalizes sovereignty into law in the form of a principle of sufficiency and teleocracy. Such sovereignty requires legal personality, not divine or “natural” governance. The sovereign decides and enforces with violence what is, because it exists already in principle. By contrast, the sovereignty of law, insofar as it is an idea of hypothetical perfection of the polis, estimates what ought to be done in public and hopes to be “what is.”

However, in the Stoic rendering of nature, law (nomos) loses the ideal character of being a hypothesis of a common goal, and becomes a divine principle of harmony. Through a “divine” principle linking man and cosmos, nature and politics, the sovereignty of law is transformed into a metaphysical principle of nature as reason.99 Rather than a particular method of hesitant calculation, estimation, and hypothesis for the deci-sion at hand (λογισμός), the Roman principle implied, on the one hand, self-sufficiency of the sovereign decision, and on the other, its consequent form of cosmopolitanism.100 That is, the unity of the law became its uni-versal reach in nature.

99. Schneewind notes Aquinas’s reliance upon Cicero to formulate the intellectual-ist conception of the summum bonum. This scholastic inheritance of Cicero is what I’m interested in. Suffice to say a more developed reading of Cicero’s corpus would reveal an inconsistent view of this rational order; cf. The Invention of Autonomy, 19. Indeed, in both the Oratores and the Academica, Cicero reveals a subtler skeptical stance that addresses the cut-throat reality of politics in its Roman reality. See C. B. Schmitt’s discussion of Cicero’s concise representation of the sceptical tradition of Pyrrho, “The Rediscovery of Ancient Skepticism in Modern Time,” in M. Burnyeat, ed., The Skeptical Tradition (Berkeley: Uni-versity of California Press, 1983). I am thankful to Ben Clarfield for pointing out this dis-crepancy in Cicero’s more explicit political rhetoric.

100. Cicero and Marcus Aurellius demonstrate, through the elaboration of “right rea-son” (orthos logos rendered as recta ratio) as congenital with citizenship, the impossibility of law being otherwise than the rational principle of both individuality and globality. Zeno also rejected one of the fundamental questions of both Plato’s Republic and the Laws, what might be the best form of laws, and hence, that laws may be different in different places. The dissolution of the polis into a kosmopolis inaugurates this principle, of distinction, by which identity unites unity and totality. See for example Cicero’s Laws I, xxii58-62; cf. Roderick T. Long, “Hellenistic Philosophers of Law” as well as Brad Inwood and Fred D. Miller, Jr., “Law in Roman Philosophy,” in A Treatise of Legal Philosophy and General Jurispru-dence (Dodrecht, Netherlands: Springer Publishing, 2007), 127. Of course it is possible to conceive of the cosmopolis in terms of the cynic tradition attributed to Diogenes, whereby the decisive identification of being a citizen of the cosmos dissolves the imperial ascription of identity. See for example, Diogenes Laertius 6.72, cf. David Konstan, “Cosmopolitan


For example, Cicero describes “Law [as] the highest reason, implanted in Nature (ratio summa insita in natura), which commands what ought to be done and forbids the opposite. This reason, when firmly fixed and fully developed in the human mind, is Law.”101 Nature is the unifying force (vis) of law, society, and reason. It is nature that injects its source and origin into the repeated sources of order, whether political, legal, or philosophi-cal. In this respect, the Greek polis is rejected in favour of principles of the kosmopolis; that is, not law in particular, but law in principle:

[I]t is not the laws of Lycurgus or Solon or Chorondas or Zaleucus, or our own Twelve Tables or the resolutions of the Plebian Assembly…but I believe you will lay down in today’s discussion the laws of life and a system of train-ing for both nations and individuals…since law ought to be a reformer of vice and an incentive to virtue, the guiding doctrine of life (vivendi doctrina ducatur) may be derived from it.102

Life is determined by nature, whose law is one, for “Justice is one; it binds all human society, and is based on one Law, which is right reason of com-manding and prohibiting (quae lex est recta ratio imperandi atque prohibendi),” whether it is “recorded in writing or not.”103 The form of “reckoning” that Plato connected to the hypothesis of the good, is rendered by Cicero as an intelligence, prudence of natural force (vis) to command and prohibit, or, the authorization of reason.

For Cicero, reason is also the principle of nature, uniting law and nature in its method of philosophical knowledge. “The mind,” Cicero tells us, has philosophy as its tool to grasp the universe and its truth, “when it almost lays hold of the ruler and governor of the universe…is a citizen of the whole universe, as it were of a single city…with such a view and comprehension of nature…”104 The nature of the universe is its political organization, which becomes a formal political appropriation of a meta-physical concept. But the manner in which Cicero maintains this affinity between the cosmos and the polis, with a single sovereign above, repre-sents the very Romanitas of law I have been describing within its Stoic metaphysics. Hence for Cicero, it is the mind which engages this polis as though at a rank of ruler. For philosophy, being the quest to “know thy-

Traditions,” in A Companion to Greek and Roman Political Thought. Nevertheless, in the Stoic iteration of this cosmopolis consists of the decisively Latinate translation, Kosmopolites, where the Latinate suffix is attached to the Greek root, symbolizing linguistically, what is per-formed politically.

101. De Legibus, I, vi. 18.102. De Legibus, I, xxii, 57–8.103. De Legibus, I, xv. 43.104. De Legibus, I, xxiii 61.


self ” will grant one the knowledge that “he has a divine element within him (sentiet divinum ingeniumque in se).”105 This divinity is a governance of self, society, action, and thought in a political manner, such that:

in defense of all this, [the mind] will erect battlements of dialectic (disser-endi ratione), of the science of distinguishing the true from the false, and of the art, so to speak, of understanding the consequences and opposites of every statement. And when it realizes that it is born to take part in the life of a State, it will think that it must employ not merely customary subtle method of debate (illa subtili disputatione), but must employ also the more copious continuous style, considering, for example, how to rule nations, establish laws…106

The nature of man, reason and of “proper reason” is to grasp this politi-cal ordering, extending from one’s quest for self-knowledge (se ipse velint nosse) to the rule of nations and law. In this quest, the “science of dis-tinguishing true from false,” dialectic, as well as the oratorical craft and method of knowing the effects of “every statement” must be employed in a science of fulfilling the sufficiency of man unto himself, of law and rule unto itself. It is indeed strange, at first glance, to consider Cicero an exponent of what was to become an imperial principle.107 But it seems to foreshadow the logic of the imperial principle of autocracy found in Ulpi-an’s later declaration that the “emperor is freed from laws.” The emperor is freed from law because he is the source of law.108 Indeed, it is this very conception of the transcendence of the very principle that founds law, which Schmitt would later muse over in his conception of the sovereign decision. The sovereign principle became the basis upon which mere “opinion” would carry the “force of law.”109 Cicero, in conceptually trans-lating both The Republic into de Re publica, and The Laws into the Legibus, translates the principle of reason into nature and the law, as the political ordering of the universe. This is the Romanization of law: the transforma-tion of law into a metaphysical ground found in a sovereign person. And

105. De Legibus, I, xxii 59.106. De Legibus, I, xxiii, 61–2.107. Indeed I recognize the scholarly argument that Cicero’s de Re Publica, written as it

was before Octavian’s assumption of the title “Augustus” and thus, the imperial era, had lit-tle influence on Roman political theory of the time. My goal here is not to establish a his-torical causality between the Stoic harmonization of nature, law and politics, and monarchy, but rather to establish the linguistic and logical translations and permutations of the con-cept of law.

108. Ulpian, Digest 1.3.21.109. Digest 1.4.1; Gaius Inst. 1.2.5; cf. Carlos F. Norena, “The Ethics of Autocracy in the

Roman World,” in A Companion to Greek and Roman Political Thought, 266–80.


the sovereign unity of nature, reason, and divinity, establishes a civic the-ology of law: law is decided—in principle—by the sovereign.

Indeed, Cicero philologically attributes this quality of force, pru-dence and command to his reading of νομος from νεμω, an assignment of what is due from the gods, but also a division, distribution and distinc-tion; an appointment of what is due in principle. Accordingly, Cicero ren-ders the νομος as a divinely inflected justice, while interestingly rendering the Latin lex as derived from lego, choice, to collect, but also to dispatch and administer.110 The inversion is ironic, to say the least, for by estab-lishing the nomos as divine proportionality of justice, the principalization of law—the choice of law—lays claim to a transcendent origin of justice (iuris principia).111 Yet this transcendence, as we shall see, is based in rea-son itself—the harmonizing agent of divinity and humanity, nature and law. With Cicero’s rationalization of law in principle, justice is said to orig-inate in law. This origin authorizes the distinctions made by law, of what is according to “right reason” and what is not. It is the distinction found in a political decision, which I am characterizing as the sovereign in law.

What Cicero’s conversion of Platonic calculation and reckoning of law (λογισμός) into the rational principle of distinct choice (recta ratio derived from lego) demonstrates is the temporal shift within the logic of decision. Whereas logismos is a parsing according to the fluidity of virtue, whose force of judgment is always hypothetical, the decision of recta ratio is a deter-mination of the judgment in advance; for the rational choice of decision is a dialectical selection of prior givens. The distinction found in law thereby expresses the imperial force of law, or what I have referred to as the Romanization of law. The status of the legal decision, of judgment itself, is what is at issue. Principalizing law places the beginning and end of a judg-ment upon an immanent continuum. Both are imbibed into the rational structure of choice between equally determinable options, and second-arily deemed “natural.” Judgment, therefore, loses the natural character of temporality intimated in my reading of Plato, calculating virtue as though holding together differing forces, responding to an uncertain future with a method oriented toward estimating public norms. But the Romanization of law transforms law into a logic of decision, and helps describe Schmitt’s theory of sovereignty. Likewise, this principalization of law reorients the historical portrait of Roman law influence upon the Church that I dis-cussed above and explains why it is not an internal logic of Christian-ity which I am actually interested in tracing to political theology. Rather,

110. De Legibus, I.vi. 18-20; cf. editor’s Note at 18 in Loeb Classical Library edition, ed. C. W. Keyes (Cambridge, MA: Harvard University Press, 1928).

111. De Legibus.


that Roman civic theology of the sovereign in law is the root of political theology found in Christian history. Hence, the theologico-political pre-dicament is eminently legal and Roman. For as Cicero’s account of law demonstrates, the “right reason” of law becomes an immanent determi-nation of decision, for he who decides upon the law, and consequently upon any exception, “has a divine element within him (sentiet divinum inge-niumque in se).”112 Cicero marks the beginning of this Roman political the-ology of sovereignty that makes nature, divinity, and law all coordinated expressions of the same order of rational sovereignty.

The Persistent Stoicism of Romanitas

The Stoic conception of law is explicitly metaphysical.113 That is to say, whether one sides with the dominant conception of Stoic natural law the-ory represented by Philip Mitsis and Gisela Striker, that there is particular content to the nomos, or the minority view of Paul A. Vander Waerdt and Brad Inwood that the nomos is a dispositional state that is isomorphic with recta ratio or proper reasoning, we can see that the state of the nomos is one of being a metaphysical principle of either coherence or analytically sub-sequent deductions of virtuous actions. For example, Chrysippus erects the nomos as a rule of governance:

Nomos is sovereign over all [ὁ νόμος πάντων ἐστὶ βασιλεὺς], both divine and human. It ought to preside over the noble and the base, as sovereign and as commander [ἄρχοντα καὶ ἡγεμόνα] and thus be the canon of justice and injustice, prescribing to animals which are by nature political what they should do, and prohibiting them from what they should not do.114

In three lines, the pre-socratic dualism between nomos and physis is dis-solved. In three lines, Chrysippus renders the nomos of Pindar a principle of harmony between law and nature; indeed, Chrysippus renders the nomos divine and natural at once. For, insofar as both animals political by nature as well as gods are ruled by this single ruler, it seems that Chrysippus is committed to a nomos that is not static, but both begins (arkhe) and leads,

112. De Legibus I, xxii 59.113. See Brad Inwood and Fred D. Miller, Jr., “Law in Roman Philosophy,” in Fred

D. Miller, Jr., and Carrie-Ann Biondi, eds., A Treatise of Legal Philosophy and General Juris-prudence: Volume 6, A History of the Philosophy of Law from the Ancient Greeks to the Scholastics (Dodrecht, Netherlands: Springer Publishing, 2007), 127.

114. Marcian, Inst. I. (Momsen, 11, 25); Stoicorum Veterum Fragmenta 3:314. Cf. Paul A. Vander Waerdt, “The Original Theory of Natural Law,” Studia Philonica Annual 15 (2003): 17–34. See also Agamben’s reading of the Pindar fragment and Holderlin’s epistemological translation thereof in Homo Sacer.


commands, and guides (hegemon) in perpetuum. Chrysippus identifies polit-ical nature as that which is harmonized, which suggests a distinct kind of nature shared between divine and human, and this is called “political.” This may indicate the dynamic interpretation of nomos as that which leads and reigns through time as an arkhon and a hegemon. But if nomos becomes a prin-ciple of “political nature” then there is no longer any divide between divine and human, nature and reason, politics and the natural world. The principle bestows (a) teleology of inclusion and totality to sovereignty. That is, there is no longer a sense of indefinite natural perpetuation of a self-molding to the divine, which the Stoics sought in oikeiosis. Cicero’s nomos rules because it is in line with recta ratio. It is a principle of reason.115 It determines an idea of abstract completion and totality. Thus, the principalization of law means that law is applicable in every case, in advance of the case. That it is in force and applies to all circumstances without contradiction means that law becomes a first principle. As a determination of totality in advance, the principalization of law is a politicization of law. The law is in principle what must be done, what must be included and excluded.

Cicero’s repetition of the Platonic Republic and the Laws is a concerted effort at consolidating the particular political theology of Rome and to annex the formal tools of Greek thought. As Eric Voegelin notes, Cicero’s goal is to justify the Roman Republic as a superior model than that offered by Socrates in the Platonic dialogue of the same title.116 This moment of seeming self-consciousness of the parody and repetition expresses another facet of the logic of sovereignty I have been describing thus far: the princi-ple of sovereignty authorizes itself as the origin and foundation of its own history; that is, the sovereign maintains itself as the point of origin and the purpose of the law itself. It is this hyper-formalization of the principle of law that demonstrates Cicero’s radicalization of Stoic logic when applied to a particular political theology, namely, that of Rome.117 For in the ensuing historical justifications for the transition from Republic to Empire, writ-ers such as Varro see the concreteness of law and sovereignty dovetail with the princeps civitatis, the first among citizens, which Augustus maintained as the consecration of his position as pontiff and having magisterial powers.118

115. Vander Waerdt, “The Original Theory of Natural Law,” 22.116. de Re Publica, II.3.117. See Carl Schmitt’s consideration of this point in his response to Peterson in Politi-

cal Theology II, 64.118. Hence the shift from the Principate to the Dominate is telling. See Nicholas, An

Introduction to Roman Law, 11–13. See also Christopher Pelling, “The Greek Historians of Rome,” in John Marincola, ed., The Blackwell Companion to Greek and Roman Historiogra-phy, vol. I (Malden, MA: Blackwell, 2007), 256–7, regarding Polybius’ characterization of Augustus’ reign and its monarchic/constitutionalist tendencies.


Cicero openly maintains that Plato’s “idealism” must be superseded for the sake of a coherent civic theology and history of the Roman Republic—the true Republic. Thus, Cicero’s ability to establish the coherence be-tween nature, law, and reason rests upon the metaphysical principles of the Stoa,119 which harmonize the kosmos according to a divine principle as its governing agent.120 The harmony of the kosmos is therefore no lon-ger a distinct political nature nor an ideal nature of nomos, but the har-mony of metaphysics and politics. The two cannot be thought apart and the theologico-political inscribes itself as this harmonization of metaphys-ics and politics. That is, the universe is metaphysically constituted as the theological basis of politics. One cannot think them apart. Hence, the first-century Roman historian Dio Chrysostom further exemplifies this logic of imperial sovereignty when he writes of the Stoic analogy between kosmos and polis:

This argument [about the world governed like a city] applies itself with brevity to accord the human and divine realms and to include all that is rational under a unique reason, discovering in this single universal order the solid and indissoluble principle of community and of justice (κοινωνίας ἀρχὴν καὶ δικαιοσύνης μόνην ταύτην).121

Here Dio Chrysostom establishes the political harmony of human and divine, justice and community, within the singular rational principle (ἀρχὴν καὶ δικαιοσύνης μόνην ταύτην). The arkhe is mono; it is simple and single. But Dio Chrysostom also clothes this metaphysical princi-ple in political garb as the governance of the universe as though a city, for this is the genre of political theology: a history of Rome. Here we see how the Roman political theology of Stoic influence no longer concerns one metaphysical principle that is beyond both gods and men, but an attempt at materializing the political order of the cosmos within the personality of government, that is, the first citizen, the sovereign princeps civis. The Roman legal definition of personhood is grafted onto the metaphysical principle; the sovereign is persona mixta, no matter how we dress this concept—indeed, this is the purpose of the legal fiction of personhood,

119. Thus, Cicero maintains the political theology of Rome when he describes gods and men as subject to the same rule of reason that enables the recognition of one truth and one law that commands the good and forbids the ill (…eadem veritas utrobique sit eademque lex, quae est recti praeceptio pravique depulsio). De Natura Deorum, II, 78–80.

120. “Therefore, if they say that what is sovereign over the world is not a sovereign, and they do not acknowledge that the world is governed by a sovereign….” Fr. 1126 in Oeuvre philosophique/Chrysippe; textes traduits et commentés par Richard Dufour (Paris: Les Belles Lettres, 2004), 580–1.

121. Discourse 36, 29.4-31, 4. Fr. 1127 in Chryssipus, Oeuvres Philosophique, 580–81.


to cloak the power of law into the personal will of any rational being.122 Thus, whereas the Greek Stoa are content to describe the katekhonta123 or virtuously perfected actions consequent upon recta ratio as the stamp of nomos, the Roman reiteration as demonstrated by Cicero, maintains the actual laws of the Roman polity as the canon of laws pertaining to justice. Cicero thus manifests a preference for the civil religion of Rome as the natural religion of the nomos. Political theology is therefore the civic theol-ogy of Rome, which persists in the Romanitas of law, the principle of sov-ereign decision.

Monotheism, Monarchy, Sovereignty

Having explored the relationship between law and decision in Plato and Cicero, I now want to return to the question of sovereignty as it relates to Christianity and political theology. How does the medieval papacy find Roman law as a resource? Is this a purely legal phenomenon? As I noted at the outset, this question is not one that I am treating in terms of social or institutional history, but in terms of ideas and conceptual developments. I therefore want to conclude by returning to the debate between Schmitt and Peterson, and suggest that a metaphysical history also helps explore the link between Christian Monotheism, monarchy, and sovereignty.

Erik Peterson famously described the political theological problem of monotheism and how early Christian writers embraced a metaphysical first principle of the cosmos in order to describe God’s relation to the world. The one God became the One, or unity, which Plotinus, Porphyry, and others had claimed part of Aristotle’s “theology.”124 But early Christian writers did not stop at the metaphysical. They accepted the Stoic belief in the cosmos as a polity governed by a sovereign. As sovereign of the world, God’s metaphysical unity was considered the basis for a politics based on divine monarchy.

In his seminal essay, “Der Monotheismus als Politische Problem,” Peter-son argued that the metaphysical concept of the one simple substance or

122. Cf. Eric Santner, The Royal Remains:The People’s Two Bodies and the Endgames of Sov-ereignty (Chicago: University of Chicago Press, 2011), 37ff.

123. In this respect, I believe that Vander Waerdt and Inwood are correct to infer a lack of determinate content to the nomos. For insofar as the metaphysical unity of the nomos is here adduced as a principle, content becomes simply derivative.

124. Book 12 of the Metaphysics was often referred to by the commentators, following Plotinus and Porphyry, as Aritstotle’s “theology.” See for example the introduction to Wil-liam Laughton, ed., and Aristotle. The Text Tradition of Pseudo-Aristotle ‘De mundo,’ together with an Appendix Containing the Text of the Medieval Latin Versions (London: Oxford Univer-sity Press, 1924).


principle described by Aristotle in book 12 of the Metaphysics is transformed into the political claim of divine monarchy. In the Metaphysics, Aristotle invokes the verse from the Iliad, “The rule of many is not good; let one be ruler”125 to describe the unity of a metaphysical substance. This, Peterson claims, is the foundational principle of metaphysical unity, which is then superimposed onto Jewish monotheism in the writings of Philo. In Philo, however, Peterson detects a uniquely political motivation in Philo’s attempt to justify Judaism within a Hellenistic context. That is, Peterson sees Juda-ism and Hellenism as political theologies whereas Christianity was merely dabbling in this cultural milieu. Peterson acknowledges the dominant peri-patetic and Stoic influences that sustained the analogy between the ruling principle of metaphysics and the ruler of the city. Nevertheless, Peterson claims that no political theology is possible in Christianity on account of its Trinitarian commitments. In the latter, Peterson sees the definitive separa-tion of the transcendent God from any corresponding kind of monarch, for the particular triune unity “had no correspondence in the created order…the linkage of the Christian proclamation to the Roman Empire was theo-logically dissolved.”126 Thus, Peterson’s historicist declaration at the conclu-sion of his essay outlines a simple overcoming of each successive stage of the theologico-political problem for Christianity:

the doctrine of the divine Monarchy was bound to founder on the Trinitar-ian dogma, and the interpretation of the Pax Augusta on Christian eschatol-ogy. In this way, not only was monotheism as a political problem resolved and the Christian faith liberated from bondage to the Roman Empire, but a fundamental break was made with every political theology that misuses the Christian proclamation for the justification of a political situation. Only on the basis of Judaism and paganism can such a thing as a “political theol-ogy” exist.127

Whereas the triune unity “theologically” dissolves the link to the Roman Empire, here Peterson claims the eschatology of Christianity is liberated politically. That is, “monotheism as a political problem” is solved through a theology of the trinity, and though Peterson tries to avoid using the word at all, the problem of divine monarchy is solved theologically, through a “politics” of eschatology. The Pax Augusta begins to crumble in light of the sovereignty of Christ as a political eschatology. Peterson’s argument therefore presupposes the priority of theology to politics despite proving theologically that Christian eschatology has already “theologized” politics.

125. Homer, Iliad, Loeb Classic Library, trans. A. T. Murray and William F. Wyatt (Cambridge, MA: Harvard University Press, 1999), 2:204

126. Peterson, “Monotheism as a Political Problem,” 103.127. Peterson, “Monotheism as a Political Problem,” 104–105.


From what I have argued thus far, Peterson would appear to be both right and wrong; where he is right it is for the wrong reasons. I have argued that political theology must be understood in the form of Romani-tas, and that this concept describes the logic of sovereignty as a juristic form of decision. Yet with Peterson’s exclusion of political theology from the “theology” of Christianity, the “pagan” Romanitas introduced to poli-tics of the medieval Church, which I explored above, cannot be explained. As I suggested, the medieval theologization of the political, of Roman law, might explain how, contrary to Peterson’s presupposition, Christian eschatology can be juridically formulated as the vicar of Christ, or the sov-ereign, through translating the Roman into the Church itself.

Peterson’s argument falters, I believe, in his shift from the metaphysi-cal unity of the pseudo-Aristotelian text to the idea of monarchy taken up by early Christian thinkers as though it were an exclusively theological mode of discussion. For Peterson, the monarchia of God becomes a problematic concept, which he surveys up to the age of Constantine. And he rightly attributes the influence of Stoic and Peripatetic metaphysics to the perpet-uating of theological backdrops. Yet the polemic tone of Peterson’s argu-ment, which is only confirmed in its infamous final note,128 is directed towards a complete disavowal of any political theology, without exploring what the “political” means in this Stoic context. By giving “politics” a Jew-ish or Pagan form, he ignores his own conclusions that, namely, the Stoic universe, not the Philonic cosmos, attributes the sovereign principle to nomos and its permeation of reason.129

Peterson notes, as I have been arguing in a different mode, that an implicit Stoic ideal of assigning primacy to a divine principle as the ruler

128. Peterson writes: “To my knowledge, the concept of ‘political theology’ was intro-duced into the literature by Carl Schmitt, Politische Theologie (Munich, 1922). His brief argu-ments at the time were not systematic. Here we have tried to show by a concrete example the theological impossibility of a ‘political theology.’” See Theological Tractates, 233–34.

129. Peterson and Voegelin following him, miss the point of the Christian Greek apolo-gists use of the Homeric verse (“it is not good that many rule, let one be Lord”); the meta-physics of the logos are what are at stake—the relationship in the peripatetic Alexandrian style concerns the relationship between logos and arkhe. Philo does not materialize the logos. The logos remains a first-order concept, ideal in nature, but not in the princeps civitatis which arises out of the Roman imperial concept of the Emperor and this political theology. See Eric Voegelin, The New Science of Politics: An Introduction (Chicago: University of Chicago Press, 1952), 102. It is precisely the Trinitarian controversies of the third and fourth centu-ries that give way to an idea of personality and materialization of the logos as arkhe and basi-leus. It would be beyond the scope of this article, but nevertheless necessary, to provide a detailed study of Rabbinic negotiations of Roman political theology. Cf. Yalkut Shimoni, Yehoshua, 247:31: “The three words for God are different names for the same God, just as you may call one and the same monarch, basileus, Caesar, or Augustus.”


(basileus) of the cosmos inheres in the belief in the universe as a polis. Hence, my discussion of Cicero reveals just such a tendency to identify the political-theological trope of legal principle as a monarchic theme, despite Cicero’s many republican aversions to such politics. For Peterson’s own part, he makes a similar claim in identifying this monarchic tendency in Philo. For despite Philo’s many “democratic” tendencies, according to this reading, the metaphysical concept becomes a political principle or “a political-theological propaganda formula of the Jews”130 in response to Roman political dominance. According to Peterson, the culmination of this political rhetoric comes in the shape of Eusebius of Cesaearia’s recon-ceptualization of Constantine, and Augustus before him, as a providential fulfillment of Christian prophecy. Whereas Origen of Alexandria identi-fied an eschatological horizon for the eclipse of national sovereignties in his contra Celsus, and thus, the diffusion of politics into theology as such, for Eusebius, Peterson writes,

the problem of monotheism is regarded from a standpoint that is not escha-tological but historical and political. The cessation of national sovereignty is documented with historical dates, but in this historical demonstration, which appears as a fulfillment of Old Testament prophecies, a choice is at the same time made politically for the Roman Empire.131

Eusebius thus concludes a corrupt vision of political theology that began with Philo, the Jew. In his concluding remarks, Peterson simply claims that the Trinitarian doctrines of the Capodocians particularly lam-bast the possibility of collusion between the Empire and the Christian tri-une God.

Yet Peterson’s thesis attributes the very logic of sovereignty inaugu-rated by Roman law, and carried to fruition in the medieval papacy, to Philo of Alexandria, whose view of the nomos is quite distinct, and not to mention conspicuously absent from Peterson’s exegetical discussion. Indeed, in a different context, a careful study of the Philonic view of the natural law and its relation to the Torah would merit confrontation with Peterson’s thesis.132 And here again, the major lacuna of Peterson’s argu-

130. Peterson, “Monotheism as a Political Problem,” 104.131. Peterson, “Monotheism as a Political Problem,” 96.132. While not explicitly engaging Peterson’s claim, Hindy Najman has offered one

of the more careful studies of Philo’s treatment of law. Any future consideration of Philo in relation to Peterson’s largely canonical thesis concerning political theology would have to square with Najman’s interpretation of Philo. See Hindy Najman, “The Law of Nature and the Authority of Mosaic Law,” Studia Philonica Annual 11 (1999): 55–-73; and “A Written Copy of the Law of Nature: An Unthinkable Paradox?” Studia Philonica Annual 15 (2003): 51–6. This figure of the intelligible form and its copy which is nevertheless perfect, occu-pies Philo’s thought in a revealing manner. In both De Opficio Mundi and Vita Mosi, Philo


ment lies in its leaps from metaphysics to theology and politics without considering the role of law at all. In this respect, it is no surprise that Peter-son fails to consider the Pauline epistles along with Philo’s express con-cern with prophecy and the nature of the law. Indeed, elsewhere, Peterson even returns to the explicit theme of “decision” wherein the Twelve Apos-tles, and not Paul, decide to leave Jerusalem and go to the Gentiles, mak-ing a “claim of sovereignty” in the form of the ekklesia.133 But without a treatment of the Roman influence on Christian metaphysics and its reori-entation to law, Peterson’s claim of “a closure of any political theology” remains problematic. As I hope to have successfully suggested, the juridi-cized principle of sovereignty that enabled the afterlife of Roman law in the medieval Church proves quite a different conceptual dynamic than the one suggested by Peterson—that the return to law is a theologization of political Romanitas.

In sum, Peterson is right; paganism conditions political theology. Yet, the reasons for its persistence are not to be found in Philo, the Jew. Rather, the imperial claims of the Romanization of law and its sovereignty in Stoic metaphysics is the source of political theology, because the model of law therein is that of the decision. The latter is the logical expression of the theologico-political: that is, the immanent principle of sovereignty.

Conclusion

In this article, I have approached the question of “legal principle” in three parts. First, I began with a conceptual-historical consideration of the shift within the organization of legal authority and governance of the Church. Through the consolidation of legal pluralism as the condition for a uni-fied legal persona, I argued that papal sovereignty conceptually imbibed the logic of Roman law. I invoked the term “principality” of the sovereign to describe a principle of law: that is, the originary character of this leg-islative authority, its first-order authority to decide. Papal sovereignty, I argued, expressed a political principle, consolidated into the form of legal distinction, giving rise to a theologico-political institution insofar as it maintained the juridical form of the sovereign decision. In other words, the politics of Roman law were theogized into the Church. This portion of the argument can therefore be summarized as follows: the politicization of law comes with the determination of law in principle, but politics becomes the-ology when the logic of sovereignty determines practice and governance of

describes the model of a noetos kosmos, an intelligible cosmos, as the model for the creation of the world.

133. Erik Peterson, “The Church,” in Theological Tractates, 37–39.


the Church. Conceptually, this is the problem of sovereign decision: the decision is made in advance of the event; the horizon for judgment is for-malized prior to any possible alteration of expectation. In this way, politi-cal theology found expression in medieval Christendom as Romanitas.

The next move of this article was to consider the sovereign as such, and hence, in its Roman context. I argued that whereas Greek or at least the Platonic idea of law as sovereign expressed an ideal or hypothetical ground, the Ciceronian articulation enabled the sovereign to become a principle in law. As a question of monotheism and monarchy, however, I argued that the sovereign principle is a concept that incorporates the logic of transcendence into an immanent order of normativity.134 That is, the Stoic theology of oikeiosis and immanence harmonized the nomos with nature and reason. In its medieval application as well as in the early Chris-tian context that Erik Peterson describes, this immanent principle of sov-ereignty imbibed the force of eschatology. In the final argument against Peterson, I suggested that the medieval Romanization of that eschaton and the law transformed Christian eschatology into the mode of political theology. The “principle” transposed a dynamic element of judgment into a static principle of rationality. Hence, sovereignty came to represent the union of nature, law, and reason. This trinity seemed to now correspond to the triune unity that Peterson argued to have no analogue and thus pri-oritize a “pure” theology over politics. But in contrast, I argued that the political ordering of the cosmos, nature, and reason—the harmonization of metaphysics and politics—is what identifies the Roman and Latin form of sovereignty in law.135 Consequently, ordering nature and reason within

134. Scholastic philosophy in the latter half of the thirteenth century emblazoned this notion. Even the divide between voluntarists and intellectualists did not steer from this conception of the first principle. See for example John Duns Scotus’ treatise, De Primo Prin-cipio, “God, First Principle”: “1.1: May the First Principle of things grant me to believe, to understand and to reveal what may please his majesty and may raise our minds to contem-plate him. 1.2: O Lord our God, true teacher that you are, when Moses your servant asked you for your name that he might proclaim it to the children of Israel, you, knowing what the mind of mortals could grasp of you, replied: ‘I am who am,’ thus disclosing your blessed name. You are truly what it means to be, you are the whole of what it means to exist. This, if it be possible for me, I should like to know by way of demonstration. Help me then, O Lord, as I investigate how much our natural reason can learn about that true being which you are if we begin with the being which you have predicated of yourself.” Cf. Schneewind, The Invention of Autonomy, 22.

135. The Latinity of the principle, Reiner Schurmann tells us, serves as the translation of the ordering of nature, the arkhe of phusis, into its ipseity and later into Leibniz’s princi-ple of “sufficient reason”: “The overdetermination of the Latin concept of principium, if it is topologically deconstructed, will reveal something about the manner in which the origin manifested itself in the epoch of Latin philosophy. At the close of that epoch, the principium


law on the basis of a principle of judgment absorbs all temporality, history, and difference into the sphere of its logical immanence.

The temporality absorbed by the principle occurs through this harmo-nization of the natural order with a legal form of necessity premised upon the principle of distinction. Indeed, the principle of sovereignty formal-izes the link between human and divine and annuls any eschatological horizon. The temporal distance of transcendence is converted into a self-sufficient principle, or what the Stoics would have referred to as oikeiosis—an orientation of the divine principle of all into one’s self.136 The principle thus solidifies a shift from eschatology to immanent teleology—a trans-formation that signals the pitfalls of the political theology of sovereignty. The transformation of eschatology into teleology is the consequence of the arkhe becoming the principium. And, as I argued, this “Romanization” of law conditions the possibility of the law’s application in all cases and all social circumstances. The idea of law as a political principality (princeps) governing the natural order becomes possible. This, I argued, is the insis-tence of the metaphysico-political contours of law, which Peterson did not consider as part of the dynamics of a supposedly purer “theology.”

Conceptually, the genealogy I have traced begins with the Hellenistic model of kingship, the exposition of which we owe to E. R. Goodenough. The embodied law of the king is a trope; however, that was materialized into the cosmic order of nature with Stoic philosophy. It is this conception of the legal principle that the papal sovereign embodied. In this respect, the Latin epoch takes on the semblance of merely preserving the anteri-ority of Hellenism to Christianity, but in truth fashions the Roman law as its source of law, reason, and nature. The medieval papal sovereign is therefore more a continuation of Stoic and Roman ideas than early Chris-tian, Greek or Jewish ones. Where God alone is sovereign and the source of law, always beyond the comprehension of the political order, the very meaning of “law” is changed. If law does not represent the sovereign deci-sion, but a realm of transcendence that cannot be reduced to nature or reason, then it may prove to resist the eminently political stakes of the

becomes a law of the mind. The ‘first from which’ things arise and are ruled is then a first truth conceived by reason and formulated as a premise. The overdetermination that pro-gressively restricts that arkhe until it finally appears as a self-evident law indicates a history of presence, a history of the origin as presencing.” Schurmann’s description of the Latin epoch appears to accord with what has been laid out above. Reiner Schurmann, Le Principe d’anarchie: Heidegger et la question de l’agir translated and enlarged as From Principles to Anarchy: Heidegger on Being and Acting (Bloomington: Indiana University Press, 1987), 106–107.

136. See A. A. Long, From Epicurus to Epictetus: Studies in Hellenistic and Roman Philosophy (Oxford: Clarendon Press, 2006), 259. “The Stoic divinity, as the soul of the world, per-vades all matter, with the result that every state of affairs can be ultimately analysed as an activity in the life of the intelligent first principle.”


law as we know it: namely, the onto-theology, or materialization of law.137 Cicero’s turn to the mind, to recta ratio and “the divine element within him (sentiet divinum ingeniumque in se),”138 has been reified in the sover-eign principle as the basis of legal reason in our jurisprudence. Even natu-ral law, when interpreted thus, simply becomes a “material determinism” in law: a law whose very applicability is unlimited and transcendent, but only insofar as its transcendence is immanent to the structure of reasons and principles.139 If law defines reason, nature, and the unity of the deci-sion, then the sovereign remains the source and end of law, or its eschaton. This politicization of law, as Schmitt and even Peterson, via negativa, have helped thematize, is what I have referred to as Romanism.140

Monotheism, it seems, must be squared off with monarchy once again. For political theology is inherently Roman in its focus upon the sover-eign. While a Pagan or Jewish political theology may be possible, as my appeal to Plato as well as, I believe, a careful study of Philo and Rabbinic literature may demonstrate, such a study remains a lacuna. If Christian theology is to resist its historical Romanitas, as a political theology, then per-haps it must begin with the question of whether Romanitas must remain the idiom of the political and the sovereign.

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