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Power and rights: the power of the prince and the rights of his subjects. In the legal thought of the medieval and early modern periods, these two terms are in almost constant conflict. Now thanks to Kenneth Pennington's masterful account of the four-century struggle, we can watch as the outlines of Western jurisprudence take shape.
Pennington uses the writings of many jurists, from Bulgarus and Martinus in the twelfth century to Jean Bodin in the sixteenth, to bring into focus this basic tension underlying the entire history of law and government. His exploration of the ius commune, the common law of Europe with roots in Roman and canon law, permits us to follow the evolving ideas of monarchy and power as these became more and more "absolute." At the same time, we see that a formidable succession of legal theories and arguments advanced the rights of subjects or citizens, assuring that "absolute power" could never exist in fact. Pennington illuminates this paradox with elegance and erudition as he follows the changing conceptions of law.
The fact that the same legal minds that created the doctrine of absolute power of the prince also, and in the same period of time, fashioned the first doctrine of inalienable rights in the West is no more surprising than another of Pennington's conclusions. He finds that the concept of due process, so central to Western legal thought, did not have its origins in England as is generally believed. The first jurist to write "a man is innocent until proven guilty" was not a sturdy Anglo-Saxon but most probably a French jurist of the late thirteenth century.
This ground-breaking discussion of the concurrent development of two crucial themes in the Western legal tradition and their place in the foundations of contemporary thought will greatly interest students of political theory as well as legal historians.
Pennington uses the writings of many jurists, from Bulgarus and Martinus in the twelfth century to Jean Bodin in the sixteenth, to bring into focus this basic tension underlying the entire history of law and government. His exploration of the ius commune, the common law of Europe with roots in Roman and canon law, permits us to follow the evolving ideas of monarchy and power as these became more and more "absolute." At the same time, we see that a formidable succession of legal theories and arguments advanced the rights of subjects or citizens, assuring that "absolute power" could never exist in fact. Pennington illuminates this paradox with elegance and erudition as he follows the changing conceptions of law.
The fact that the same legal minds that created the doctrine of absolute power of the prince also, and in the same period of time, fashioned the first doctrine of inalienable rights in the West is no more surprising than another of Pennington's conclusions. He finds that the concept of due process, so central to Western legal thought, did not have its origins in England as is generally believed. The first jurist to write "a man is innocent until proven guilty" was not a sturdy Anglo-Saxon but most probably a French jurist of the late thirteenth century.
This ground-breaking discussion of the concurrent development of two crucial themes in the Western legal tradition and their place in the foundations of contemporary thought will greatly interest students of political theory as well as legal historians.
作者簡介
Kenneth Pennington is Professor of History and Law at Syracuse University. Among his previous books is Popes and Bishops: The Papal Monarchy in the Twelfth and Thirteenth Centuries (1984).
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