The Birth of a Maxim: “A Bishop Has No Territory”

Abstract

One of the most striking legal developments of the sixteenth century is the emergence of two related challenges to the medieval ius commune. Their target, the pan-European Romano-canonical “common law,” was based on academic elaborations of Justinian's Corpus iuris civilis, Gratian's Decretum, and succeeding books of papal judgments or decretals. The ius commune offered a wealth of legal principles and models both of legislative sovereignty and of systematic law codes. In the sixteenth century, its primacy—indeed its coherence—was challenged by a humanist school of jurisprudence inspired by the philological criticism of humanist literary scholars. This movement to recover the original, that is, the classical Roman meaning of particular Roman-law provisions, was exemplified in France by the work of Guillaume Budé, Jacques Cujas, and their followers. A closely related movement challenged the medieval legal tradition by denying that Romano-canonical principles were universally applicable. This challenge, evident in the work of Charles Dumoulin, François Hotman, Jean Papon, and Antoine Loisel, and often tied to Protestant rejection of canon law, asserted that Roman laws were irrelevant to France and encouraged the search for the native, authentic principles of French law. These were to be found by synthesizing local customary law, decisions of the sovereign courts, and royal legislation.