Dogmatyka prawa wobec politycznej opresji. Czy historia myśli prawnej może nas czegoś nauczyć?

One of the contemporary views formulated and popularized mainly by authors from the socalled critical theory of law is the belief in the inevitable, mutual relationship of law (theory of law and dogmatics of law) and legal practice (adjudication) with politics and the political. This position is strengthened by the observation of contemporary disputes — especially visible in Poland — with the participation of politicians and lawyers: politicians accuse lawyers of political motivation of actions taken to defend the judiciary and the rule of law, while lawyers defend themselves by arguing the need for autonomy of their professional practice, including its apolitical nature. In this text, I explain the arguments of the latter party to the dispute. I choose the dogmatics of law as the field of illustrating the issues raised, since it occupies a special place in the continental legal scholarship, acting as an intermediary between the jurisprudence and legal decision-making practice. I am trying to show — by referring to two examples from general history, i.e. the eleventh-century investiture controversy and the nineteenth-century debate in the background of the German reunification idea — that law and politics (lawyers and politicians) have always been forced to compete and cooperate with each other. Thus, it confirms the thesis of the critical theory of law. At the same time, however, I try to show that the legal community had the ability to “learn” from the political disputes of the past, which led to the formation of independent jurisprudence and legal practice in the face of current politics, and thus also to apoliticality. What is more, I argue that such an apolitical nature is a condition for the survival of legal culture in its present shape — and here, my path diverges from the critical legal theory claims. However, in my opinion, the contemporary arguments made within this theory about the political science of law and jurisprudence should be treated with all seriousness — as another experience from which our community, as one can hope, will be able to draw informative conclusions.

CANOSSA CASTLE: THE IMPORTANCE OF A CRITIC AND AWARE PLAN OF INTERVENTIONS FOR CONSERVATION AND PREVENTION OF CULTURAL HERITAGE

Fortified architecture is a widespread and peculiar typology in Italy as it represents an identifying element for communities and a reference point in the landscape. An imposing system of castles, dating back to the 11th century, characterises the area of Reggio Emilia, in the Emilia Romagna Region. Among these fortifications, Canossa Castle is an important and distinctive fortress. Built on the top of an isolated cliff, a particularly strategic and defensive point, it played a central role in the medieval European history. For instance, it was the scene of the well-known reconciliation between Henry IV and Pope Gregory VII, which ended the Investiture Controversy in 1077. The current state of ruins of this fortress is due to both centuries of neglect and to recent incongruent interventions. Therefore, archival research, in-situ inspections and photogrammetric techniques were carried out on the case study of Canossa Castle, in order to analyse the numerous restoration yards that have followed one another on the fortress in the last century. Firstly, the lack of coordination between the different interventions emerged. Furthermore, it has been observed that the principles of restoration have been disregarded several times, with consequent damage to the archaeological remains. Therefore, the present study aims to underline the importance of a critical and aware intervention plan for the conservation and damage prevention of cultural heritage, considering the possible support of HBIM tools.

Sacrum imperium: Lombard Influence and the ‘Sacralization of the State’ in the Mid-twelfth Century Holy Roman Empire (1125–1167)*

Sacrum imperium (literally: holy empire) is a Latin phrase that entered the chancery of Holy Roman Emperor Frederick Barbarossa (1152–1190) in 1157. Sacrum imperium developed into the name of the Empire only much later, but scholars interpreted it as a programmatic phrase that Frederick and his chancellor, Rainald of Dassel, introduced as a part of their plan to ‘resacralize the state’ after its supposed desacralization by Pope Gregory VII (1073–1085) and the Empire’s defeat in the Investiture Controversy (1076–1122). In this article I show that sacrum imperium was introduced not by Frederick and Rainald but by a group of Italian courtiers who had developed a new political vocabulary based on that of Justinian’s Corpus iuris civilis and the contemporary Byzantine court language. I also demonstrate on the basis of Italian, Byzantine and papal sources that a desacralization of the state in 1122 never happened.

The Rise of the State as a Process of Secularization [1967]

Böckenförde shows how and why the modern state is a product of the historical process of secularization. Three key conflicts between papacy and European kings led to the establishment of administrative, political, and later legal structures independent from the Catholic Church: the Investiture Controversy (1087–1122), the confessional wars of the sixteenth and seventeenth centuries, and the declarations of rights as universal rather than based on religion in the Virginia Bill of Rights of 1776 and the French constitution of 1789. The modern state emerged from this process independent from the Church, without claims on the religious lives of its citizens or questions of sin and salvation. Böckenförde regards the constitutional recognition of freedom of religion as the bedrock of modernity. In the article, Böckenförde identifies what he regards as the core challenge facing the liberal democratic state, formulated in his most prominently cited sentence: ‘The liberal secularized state is sustained by conditions it cannot itself secure.’ Böckenförde argues that the modern state relies on a moral substance, thriving only under conditions of solidarity and cohesion that need to emanate from within society. Religiosity is one potential source of this moral substance. At the same time, one of the goals of the liberal state is the promotion and safeguarding of pluralism: If the modern state were to promote a given worldview or a sense of morality, it would violate the very liberalism on which it is founded. This dilemma has become known in the literature as the ‘Böckenförde dictum’.

Western Christendom, c. 1000–1400

The liturgy of Western Christendom (c. 1000–1400) was the product of sweeping ecclesio-political and religious reforms that had a broad and lasting impact on the content and performance of the rites of the Latin Church in the later Middle Ages. Beginning with the reforms of monasticism at Cluny and culminating in the reformed papacy in the age of the Investiture Controversy, a sharp division between the clerical order and the laity was imposed on Christian society. This fostered a heightened sense of divine mystery in the liturgical rites (principally, the Mass) that could only be administered by properly ordained clergy, under the authority of the pope. The triumph of the clerical rule of Christendom coincided with more concrete expressions of the real presence of Christ in the eucharistic elements in both formal theology and liturgical practice. The Mass liturgy became the summit and quintessence of liturgical piety in this era, eclipsing other forms of liturgical service and becoming the focal point of sacramental theology. With the construction of monumental new churches in the Gothic style, from the 12th through 14th centuries, liturgical performance (including costly vessels and vestments) achieved levels of ostentation that caused some conflict between ascetically minded reformers (the Cistercians) and the proponents of lavish liturgical spaces (the Cluniacs). A thriving tradition of liturgical exposition or formal commentary on the divine offices worked in tandem with these dramatic architectural and artistic developments in the liturgical spaces of Europe. Despite the new scholastic methods of the universities, allegorical exegesis of the liturgy, following a tradition that began in the 8th century with Amalarius of Metz, continued to predominate in the lengthy treatises of expositors who worked in the peak period of scholastic theology, down to and including William Durandus of Mende (c. 1296). The performative aspects of the liturgy also witnessed major advances with the introduction of polyphonic chant, liturgical drama, and para-liturgical processions (such as the Feast of Corpus Christi).

Power-sharing ‘discontinuities’: Legitimacy, rivalry, and credibility

Power-sharing arrangements between a leader and a popular outsider can be mutually beneficial and threatening. The literature has focused primarily on the former’s trade-off where a leader gains legitimacy when sharing power with a respected outsider but also subsequently creates a rival who could challenge their rule. Yet this outsider also faces a simultaneous trade-off between power and credibility in acquiescing to the leadership. I incorporate both coinciding trade-offs in developing a formal model to examine such power-sharing arrangements which have been prevalent historically and currently. I illustrate a ‘discontinuity’ in optimal power sharing where a leader either shares nothing or shares a specific amount to compensate the rival for the rival’s lost credibility. Counterintuitively, I further show that the leader should share more power with less trustworthy rivals to reduce their strong incentives to challenge. I then revisit the Investiture Controversy in medieval Europe using these insights from the model.

Heteronymous politics beyond anarchy and hierarchy: The multiplication of forms of rule 750–1300

Anarchy and hierarchy are two central concepts of International Relations theory but as conventionally defined they cannot describe political life for most of Western history. Neither concept describes the structure of medieval politics well. Rather, many different principles of differentiation existed simultaneously, both stratificatory and segmentary. The situation was closer to anarchy as understood as the absence of overarching principles of order rather than as ‘anarchy’ in the conventional sense used in international relations and absence of government. The power of the Popes over temporal rulers was considerable, but it never corresponded to the concept ‘hierarchy’ as conventionally understood either. Between c. 700 and c. 1300, Europe became more heteronymous as time went by, not less. More principles of differentiation were developed, and both Popes and kings became more powerful. The reinvention of the papacy after the ‘Investiture Controversy’ (1075–1122) created a system of law and practices in which European monarchs and realms were embedded, but it did not create an all-powerful papacy.