It always astonishes me (though
it shouldn’t by now) when a bit of history studied for a completely different
purpose sheds light on the modern world.
In this case, a bit of information from a discussion of Justinian’s Code
eerily recalls American government today.
“In
another much celebrated text (Dig.
I.4.1pr., cf. Inst. I.2.6), Ulpian says that what the emperor has decided (quod principi placuit) has the force of
a lex. Ulpian probably meant that where the law was
doubtful, it was the view favored by the emperor which must prevail. He explains this statement by citing the lex de imperio of the popular assembly,
passed at the beginning of each emperor’s reign, which formally gave him power
to do everything necessary for the benefit of the state. In the time of Augustus this referred to
executive power, but it was used by later jurists to justify the accomplished fact
of the emperor’s power of legislation. The
implication that in some sense the emperor, when legislating, was the delegate
of the people was supported by such texts as Cod. I.14.4 (digna vox), a
constitution of Theodosius II in 429, which states that the emperor should
declare himself bound by the laws, for his authority depends on that of the
laws” (46, The Cambridge History of
Medieval Political Thought, c. 350-c. 1450, ed. by J.H. Burns).
Ulpian’s description of the
emperor’s judicial function, “quod principi placuit,” by the time of Henry VIII
was being interpreted (or at least Henry wanted to interpret it) as meaning
that whatever the king wished was law—used,
in other words, to change the executive/judge into a legislator as well, and a
legislator who acted at whim, though purportedly following the will of the
people.
Thus SCOTUS, thus the modern administrative
state, thus abuse of the “necessary and proper” clause?
6 comments:
The funny contrast is that the Imperator (and the Rex Britannicum) was frequently a very successful Dux Bellorum (or, like H.VIII, the son of one); while SCOTUS have never held military rank. In other words, to be a judge the way Kings were judges came from their judgment having been proven sound in the field.
A question arises: given that HVIII was the son of a conqueror, at the end of (reportedly) a long and bloody civil war, had the supporting offices of state yet recovered by the time HVIII was starting to worry about Succession? Or, if SCOTUS seem to be usurping legislative function, is it because the legislature are not doing their jobs? Or is there something else? (What checks/ballances are there to moderate the judicial branch?)
But, yes, interesting! "Aphorismata non iuste ducentur"?
A good point about the dux bellorum--I had forgotten how much that still prevailed, even in the late middle ages. My understanding of Henry VIII, FWIW, is that he inherited a pretty good situation from dear old dad, who had been quite cautious of how he arranged power, and stingy in the wake of the wars. Henry continued to consolidate power around the throne, though he spent (wasted)a lot of the money. So, in short, from what I know the offices HAD recovered. But the wars of religion on the continent (particularly nasty in Germany and France) made Henry, and later Elizabeth, nervous, and may have spurred the increase of royal absolutism.
As for SCOTUS ... I fear it is the absence of a real check on their activity which is at fault. I don't think the American founders anticipated a country divided on moral issues--certainly not a country were the elites were divided between traditional morality and something more progressive. Even Madison, who was more concerned than most about the non-angelic nature of mankind, probably did not expect such a degree of "factionalism".
They are not!
I'm afraid I frequently get my case endings mixed up... May I hope it's not too confusing?
Oh ... maybe not? I read it as "Aphorisms are not rightly followed"--was that not what you meant?
oh! Hm... apparently I did better than I feared
the grammar I was trying to get at was "They are not rightly led by aphorisms", which, I think, means just what you've construed whether I wrote it well or not. (later thought of changing it to "ducemur", because we wouldn't be... but... where when how to write an ablative???)
Actually, I think your translation is quite as legitimate as mine! One could always through an "ab" or "de" in front of "aphorismata" to clarify, but my impression is that "good Latin authors" tended to let context take care of such things.
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