McIlwain und Constitutionalism: Ursprung, Wandel und Bedeutung eines Forschungskonzepts

Abstract

Charles H. McIlwain coined the concept of “medieval constitutionalism” late in his career, when he decided to enter the debate over Roosevelt’s “court-packing” plan. He used the concept to describe the power of the medieval king who was both limited by fundamental law and an independent legal system, and absolute in imposing his will in the government of his kingdom. In the eyes of McIlwain, Roosevelt’s attack on the independence of the judiciary violated one of the most basic achievements of the Western legal tradition. Though heavily contested from the outset, the concept of medieval constitutionalism met with success in the historiography of political thought. In particular, Brian Tierney adapted the idea in order to demonstrate how the constitutional tradition is rooted in the teaching of canon law. The ongoing success of the concept rests on the fact that it denotes the continuity of the debate on the limitations of government, as well as the entrenched legalism of medieval political thought.