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PLEASE NOTE THAT THIS IS WORK IN PROGRESS AND THAT WE WOULD BE VERY GRATEFULL FOR COMENTS.
ALSO, WE APPOLOGIZE FOR THE GERMAN QUOTES. WE WERE NOT ABLE TO GET HOLD OF AN ENGLISH TRANSLATION OF DIE GESCHICHTE DER PHILOSOPHIE FROM THE LIBRARY BEFORE CIRCULATING THE PAPER.
BEST REGARDSEMILY and [email protected]
Subjective Freedom in the Medieval Ages?A Hegelian informed discussion of the historical development of
the modern notion of rights.1
By Emily Hartz2 and Per Andersen3
Hegel did not like the medieval ages. In The Philosophy of History he laments
"[w]hile the first period of the German World ends brilliantly with a mighty empire, the second
is commenced by the reaction resulting from the antithesis occasioned by that infinite
falsehood which rules the destinies of the Middle Ages and constitutes their life and spirit"
(PH: 366, 440).4
1 We warmly thank Professor Christoph Menke, Dr. Chiara Piazzesi and Dr. Nedim Nomer for valuable comments on previous drafts of this paper. We also thank participants in Professor Christoph Menke's 2012 spring term course "The Paradox of Rights" at the The John U. Nef Committee on Social Thought at University of Chicago. Without the tremendously inspiring discussions in this class, this paper would not have been possible. 2 Assistant Professor, Department of Law, University of Southern Denmark.3 Lecturer, Department of Law, Aarhus University.4 In the following we will refer to Hegel's works using the following abbreviations: PH to refer to The Philosophy of History, HP to refer to The History of Philosophy, PR to refer to Outlines of the Philosophy of Right. The page numbers referred to are first the page numbers of the translated text, then the page numbers of
1
We will argue that Hegel's purely negative understanding of the medieval ages is
largely misconceived.5 However, the point of this paper is not simply to prove that Hegel's
account of the medieval ages is out-dated. In and by itself that claim would be of minor
interest. What is of interest however is how this claim affects a broader thesis that Hegel put
forward about the Christian influence on the development of modern rights.
Hegel famously, but also controversially claimed that modern rights and the
protection of subjective freedom, which they promote, are historically rooted in Christianity.6
To prove this thesis he posited the emergence of a Christian notion of inwardness as a
defining moment in history forming the ground on which the subsequent development of
rights emerged (PH: 318 ff., 385 ff.). For Hegel the role of the medieval church in this
narrative is the purely negative one of alienating the principle of spirituality to an extent
where a countermovement became inevitable. According to Hegel, that counter-movement
was the Reformation, which then translated the Christian notion of inwardness into political
and legal claims that paved the way for a modern conception of right.
The purpose of this paper is to revisit Hegel's historical narrative about the
emergence of the modern notion of right, using recent findings about medieval legal history
to modify and qualify Hegel's thesis. Thus, rather than refuting Hegel, our purpose is to
argue that his narrative continues to provides a helpful framework through which we can
begin to understand how -or whether new research into legal history might affect our
conceptions of the modern notion of right. 7
In particular we will use Hegel's framework to interpret important findings concerning
medieval developments of law provided by the legal historian Harold Berman. In 1983
Berman published the book Law and Revolution which argued that the formation of modern
legal notions such as "act, intent or negligence, causation, duty and similar concepts" are not
as modern as we think, but can be traced back to the institutional centralization of the
the Suhrkamp edition of the original German text. 5 Even if this ungrateful perception of the medieval ages is often reiterated not only in political theory, but also in popular culture. One recent example is the 2011 film The Adjustment Bureau starring Matt Damon and directed by George Nolfi. In the film the main character discovers that he is up against the agents of Fate itself - the men of The Adjustment Bureau - who will do everything to prevent him from succeeding in a romantic affair. When he attempts to talk The Adjustment Bureau out of controlling his life, the bureau’s representative argues that the medieval ages was what happened when they gave up interfering and let human beings work their problems out on their own (see www.theadjustmentbureau.com for further information).6 A question that has since been reiterated in the political theory of e.g. Marx and Weber.7 We are aware that drawing on Hegel's account of right is always problematic, because Hegel's arguments about right are enmeshed in his grand teleological narrative of world history according to which historical development is to be interpreted as the process of the "world spirit" (see e.g. PH, 10).While the interpretation of Hegel's concept of world spirit is an interesting discussion in its own right, we will argue that one does not have to embrace Hegel's teleological account of a worldspirit in order to recognize the pertinence of his account of the notion of right in the modern state or as Schwartsenbach puts it we disagree with those who argue that "The Hegelian horse pill [...] must be swallowed whole or not at all" (Schwartsenbach: 541).
2
Catholic church in the medieval ages (Berman 25). Berman was not the first to make this
point, but his book synthesized a broad area of research in legal history.8
While we embrace Berman's findings, we also broaden his claims by arguing that
Hegel's questions (concerning the Christian underpinning of the modern notion of right) help
us better assess their wider philosophical implications. Thus, by relying on Hegelian
informed questions we investigate whether the developments in medieval law, which
Berman describes, points toward modern law in ways that are in fact much more radical than
Berman himself was able to acknowledge given the historical framework that defined his
investigation.
Relying on Hegel's questions and Berman's findings we will argue that developments
in medieval canon law provide important instances in the political and legal transformation of
Christian notions of inwardness which may help us understand better the development of the
modern legal concept of right. Thus, although we refute Hegel's account of the medieval
ages as misguided, we reaffirm his broader thesis about the significance of the Christian
influence on the development of a modern notion of right and the importance of investigating
the historical roots of the concepts and basic intuitions, which inform our modern conception
of right.
In order to carry out this investigation we will, firstly, discus rise of the modern notion
of rights in Hobbes and the question of what distinguishes the modern notion of rights from
previous philosophical conceptions of the role of law.
Secondly we will discuss Hegel's claim, that this modern notion of right is
underpinned in crucial ways by the Christian emphasis on the inner spiritual life, which
according to Hegel was articulated in the early Christian communities and later developed
into a modern notion of subjective freedom.
In contradiction to Hegel (but in agreement with Berman) we will, thirdly, argue that
theological discussions of criminal liability in the 12th Century integrated Christian notions of
inner spirituality into law through a number of conceptual distinctions between crime and sin
that carved out the notion of a private individual realm which was on the one hand of utmost
normative importance, while on the other hand fundamentally external to law. Thus, in
contradiction to Hegel, who saw the legal developments in the medieval ages as a mere
digress and a perversion of the Christian notion of subjective freedom, we will argue that
8 As a result he convincingly demonstrated the medieval roots of central modern legal concepts and undermined the classic narrative of political theory (articulated by Hegel, Marx and Weber and reiterated in political theory today) which traces the roots of the modern state and its basic institutions to the rising absolute monarchies in Europe and their break with the Church, which followed in the keel of the reformation in the 16th Century and was cemented with the Peace of Westphalia in 1648.Berman’s revolutionary conclusions are slowly but surely seeping into political theory. The latest example is Fukuyama’s new book The Origins of Political Order (2011), which relies heavily on Berman’s research. But few, if any, have yet evaluated the implications of Berman’s conclusions for our philosophically informed understanding of the modern notion of right.
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Berman's findings highlight the relation between the ecclesiastical attempt to map Christian
notions of inner spirituality onto the development of a specifically legal framework and the
development of modern notions of right.
Our final claim will be that rather than weakening Hegel’s narrative of the
development of modern subjectivity (by refuting Hegel’s assessment of the meaning of the
medieval ages for this development) the conclusions of our analysis ultimately strengthens
Hegel’s narrative by suggesting first when and how the spiritual concept of Christian
subjectivity was integrated into the concrete legal structuring of the medieval papal state -
namely through a number of legal innovations in medieval canonical criminal law - and then
setting the frame for a discussion -on Hegelian terms- about how this comprehensive legal
re-ordering subsequently paved the way for the development of the modern notion of rights.
Hobbes and the modern notion of rightModern discussions of right take as their starting-point the question of how to
reconcile individual freedom with the normative constraints imposed by a state. In the
philosophical literature the theoretical origin of this question has been traced to many
different authors. As a result the question of who was the first to articulate a specific modern
notion of rights has been given many different answers.9 However, in spite of persistent
disagreement about origins there seems to be an overall agreement that Hobbes' Leviathan
brings the question of individual freedom the fore in a way that that makes explicit - even if it
does not initiate - a new emphasis on individuality characteristic of modern theories of right.
In the following we therefore refer to Hobbes' Leviathan as a point of orientation for the
emergence of a specifically modern notion of rights.
The answer Hobbes gave to the above question of how to reconcile individual
freedom with the normative constraints imposed by a state is well known: without the state to
posit and enforce a set of laws governing the conduct of its individual citizens the life of
those individuals will be "solitary, poor, nasty, brutish, and short" (Hobbes: Chap. 13).
Therefore it would be rational for such individuals to enter into a contract with a sovereign
leader who could enforce law and thereby protect the private interests of the individuals. In
other words: a strong leader is needed to protect individuals against each other and make
their life less nasty, brutish and short. Thus, for Hobbes, the need to secure the conditions
for the individual's self-preservation becomes the normative ground for justifying the
sovereign state (Hobbes: Chap. 13).
What is interesting about Hobbes' argument is not so much his solution to the
modern problem of freedom but the way in which he articulates the question itself. The
9 For an interesting discussion of the many possible answers to the question of the origin of the modern notion of rights see Zarka "The Invention of the Subject of the Law".
4
question posed by the Hobbes in the contractual theory is: what reasons could free and
equal individuals in a state of nature have for subduing to the force of the state? What is new
is that the question is posed from the viewpoint of individuals: what matters according to the
contractual theory of state is whether free and equal rational individuals have good reasons
to enter a state. In this way the contract theory makes the individual absolutely central in the
modern problem of legitimizing the legal order. Hegel points this out in HP and argues that
what makes Hobbes' political philosophy modern is that it specifically aims at deducing the
legitimacy of the state from principles that we, as individuals, "recognize as our own" (HP:
227, our translation).
The individual perspective implicit in the contractual theory of state marks a radical
break away from traditional projects of legitimizing the given legal order. As Leo Strauss
explains:
"Traditional natural law is primarily and mainly an objective 'rule and measure', a
binding order prior to, and independent of, the human will, while modern natural law is, or
tends to be, primarily and mainly a series of 'rights', of subjective claims, originating in the
human will" (Strauss: vii)
Aquinas account of the divine origin of all human law, illustrates this point:
"Human law has the nature of law in so far as it partakes of right reason; and it is
clear that, in this respect, it is derived from the eternal law. But in so far as it deviates from
reason, it is called an unjust law, and has the nature, not of law but of violence. Nevertheless
even an unjust law, in so far as it retains some appearance of law, through being framed by
one who is in power, is derived from the eternal law; since all power is from the Lord God,
according to Rm. 13:1" (Aquinas, Summa Theologiae, Q 93 A 3 Rp 2).
For Aquinas the litmus test of the legitimacy of a given order is the extent to which
the worldly ordering reflects a divine ordering as given by the will of Good. In modern
attempts at legitimizing the state this perspective is reversed. As noted by Strauss "Hobbes
obviously starts, not, as the great tradition did, from natural 'law', i.e. from an objective order,
but from natural 'right', i.e. from an absolutely justified subjective claim which, far from being
dependent on any previous law, order, or obligation, is itself the origin of all law, order, or
obligation" (Strauss: viii). In the modern tradition, the question is not what God thinks, but
what would appear to be reasonable to rational, free individuals.
By discussing the justification of the state through the juxtaposition between
individual will and the normative constraints of the state, Hobbes thematizes a new
understanding of freedom: the freedom that is relevant in Hobbes' question is the kind of
freedom that is potentially threatened by the state, namely the ability to do or abstain from
doing what you, as an individual, wish to do. In other words the freedom that is at stake in
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his discussion of right is freedom understood as freedom from normative constraints; it is
freedom understood purely in terms of choice.
The concept of freedom implicit in Hobbes' contractarian argument illustrates the
decisiveness of Hobbes' shift away from medieval theological justifications. According to the
Thomistic conception of freedom you, as an individual, are free to the extent that you are
able to guide yourself by standards of goodness, if you are guided only by inclinations you
are not free. Thus, in this tradition, freedom meant simply self-guidance according to
standards of goodness. In Hobbes' discussion the individual freedom at stake is the freedom
to preserve your own being. Contrary to conceptions of freedom preceding it, Hobbes'
articulates a conception of freedom as something that precedes any normative order and
hence cannot be understood through the framework of such an order. By its very question,
the contract theory therefore makes the individual absolutely central in the modern problem
of justifying the legal order, while at the same time positing the individual will as something
separate from- and external to the legal order. Thus, in Hobbes argument it is crucial that the
notion of freedom in and by itself is not normatively underpinned: to ground the normative
order it must be shown to exists independently of that order. Thus contrary to traditional
understandings of freedom the natural freedom from which Hobbes' theory starts is explicitly
non-normative: it is a pre-legal conception of freedom, a conception of freedom as a space
where you can do what you want without normative constraints.
As a consequence of Hobbes' approach rights are introduced in two steps. First (1)
the natural condition is introduced as the space of natural freedom, that is a pre-legal
freedom understood as freedom from legal constraints. Then (2) the legal order is introduced
as a guarantee of the right to pursue your natural inclination, the second step incorporates
the natural order into the legal order: Freedom is understood as negative freedom; as a pre-
legal freedom from normative constraints.10
Whether this double turn is interpreted materialistically as resulting from the
dominating interests of a new ruling class or idealistically as the development of a more
enlightened conception of -and respect for individual freedom the turn signifies that the
modern notion of right is simultaneously tied in with a new emphasis on the individual and a
new negative conception of freedom in terms of choice.
Thus, while reconciliation of the individual and the given normative order is the
explicit focus of the contractarian theory, the terms of the problem articulated in the theory
introduces a fundamental split between the individual on the one hand and the given
normative order which the individual is submitted to on the other hand. Thereby the
contractarian theory posits the individual will as outside of- and simultaneously as founding
the normative order: what legitimizes a given order is the extent to which it is able to
10 We thank Professor Christoph Menke for this formulation.
6
incorporate and preserve the natural will in terms of the right to be unconstrained by
normative prescriptions in your choice to do what you will with what is rightly yours.
Christian underpinnings of the modern notion of right according to HegelAs argued above, the central role on the individual in modern justifications of
normative order constitutes a definite break away from previous theological justifications of
order. Never the less Hegel famously -but also controversially- interpreted the modern notion
of rights as deeply indebted to Christianity. More specifically he argued that the principle of
subjective freedom which is realized in the modern notion of right "ist in der christlichen Welt
aufgegangen. Im modernen Prinzip wird so das Subjekt für sich frei, der Mensch als Mensch
frei; auf diese Bestimmung bezieht sich die Vorstellung, dass er die unendliche Bestimmung
hat, substantiell zu werden durch seine Anlage, dass er Geist ist" (HP Volume I: 127). This
formulation is from HO, but the claim is central to the argument of both HP and PH as well
as to the discussion of right in PR.
Hegel establishes his claim concerning the Christian underpinning of the modern
notion of rights by relating Christianity to three central moments in the development of right:
first, Hegel argues, the early Christian communities introduced a new emphasis on
inwardness, secondly, he argues, this emphasis on inwardness was developed into a
political principle in the Reformation finally, he argues, the political interpretation of Christian
inwardness developed into a specific principle of right during the Enlightenment.11
As the above summary of Hegel's account of the Christian roots of the modern notion
of rights illustrates, he does not award any significant role to the medieval age. Thus, in
contradiction to Berman, Hegel is reluctant to view medieval ecclesiastical law as a
significant step forward in the development of a concept of rights:
"So self-contradictory, so deceptive is this mediæval period; and the polemical zeal
with which its excellence is contended for, is one of the absurdities of our time. Primitive
barbarism, rudeness of manners, and childish fancy are not revolting; they simply excite our
pity. But the highest purity of soul defiled by the most horrible barbarity; the Truth, of which
knowledge has been acquired, degraded to a mere tool by falsehood and self-seeking; that
which is most irrational, coarse and vile, established and strengthened by the religious
sentiment - this is the most disgusting and revolting spectacle that was ever witnessed, and
which only Philosophy can comprehend and so justify" (PH: 382)
11 These three steps signify the important Christian influence on the notion of rights and are not meant to exhaust Hegel's account of the historic development of rights. According to Hegel the development of legal personhood in Roman law is also crucial to the development of the modern notion of rights, but in the context of this paper we focus on the specific Christian roots, and we therefore do not discuss the issue of how Roman law influenced the development.
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Hegel's dismissive account of the medieval church obviously gives rise to the
question of how -or rather if- Berman's historical research can be mapped onto Hegel's
philosophical narrative at all. However, before we can begin to answer this question we need
to develop a better understanding of how Hegel establishes the historical connection
between Christianity and rights. We therefore turn first to the Hegel's interpretation of the
significance of the Early Christian communities.
According to Hegel, the distinguishing mark of these early Christianity communities is
that the individual human being comes to be perceived as having absolute and infinite worth
and that the human will is thereby transformed into the primary locus of spiritual attention
(HP Volume I: 127). Hegel argues that this transformation of the emphasis on individuality is
brought into motion by the revelation of God as human in Christ. Thus with Christianity, so
Hegel argues, spirit is posited as
"daseiender, gegenwärtiger, unmittelbar in der Welt existierender Geist, in welchem
der absolute Geist in unmittelbarer Gegenwart als Mensch gewußt wird und jedes
Individuum für sich unendlichen Wert und Teilnahme an diesem Geiste hat, der ja eben im
Herzen jedes Menschen geboren werden soll" (HP Volume II: 507).
According to Hegel what sets Christianity apart from the religions that preceded it
such as Judaism or the Greek or Roman religions is that the divine being is not just
perceived as a transcendent existence essentially divided from the life of humans, but that
the divine being itself is realized as a human. The message of Christianity is that the
reconciliation of man and god is possible and that a true relationship to God is an inner
relationship, not a relationship to something essentially external. In PH Hegel explains the
significance of this revelation in terms of the realisation of the finite human existence as part
of spirit itself:
"Finite spirit itself is therefore posited as a constituent element [Moment] in the Divine
Being. Man himself is therefore comprehended in the Idea of God, and this comprehension
may be thus expressed - that the unity of man and God is posited in the Christian Religion
(PH: 324, 392).
According to Hegel the most important result of the Christian revelation is therefore
that God and man are revealed to be the same. Not in the sense that all humans are
immediately also Gods, but in the sense that Christianity posits the possibility that the will of
God and the will of humans may be reconciled. That is to say that that the human will has
the capacity to become universal; to be at the same time the will of a specific human
individual and an expression of the universal and objective will of God. Thus in Christianity
8
the human will becomes an aim in itself in the sense that the path to reconciliation and
redemption goes through the individual will.12
The point being that the true significance of the Christian revelation is the reflexive
movement inward towards oneself, and the emphasis on reconciling one's own will with the
divine will of God, not through abstaining or overcoming the worldly embodiment of the will,
but through purification of the will as will that lives the universal in its particular and finite
being. Thus, Hegel argues in PH: "[t]he pure heart is the domain in which God is present to
man; he who is imbued with the spirit of this apophthegm is armed against all alien bonds
and superstitions" (PH, p. 326, 395).
While Hegel's discussion of the historical significance of Christianity is obviously also
a celebration of the Protestant Christian faith, we should not fail to recognize it at the same
time as a genealogical claim about the deep-rooted connection between the emergence of
the Christian faith and the modern notion of right. What Hegel argues is, that the Christian
faith brought a new attention to the will as a necessary aspect of the Divine Being, and
thereby pawed the way for the modern recognition of subjective freedom in terms of the
infinite worth of each and every human individual.
Hegel emphasizes that the transformative power of the Christian insight does not lie
in the exemplar of the virtuous life or the deeds of Christ himself (PH: 325, 394). Instead,
Hegel argues, it is the principle of God as a human being which constitutes the Christian
revelation by turning the spiritual attention of humanity inward towards the individual will.
And it is this focus of the human will as the centre of spiritual attention, which Hegel argues
underpins the modern notion of right which, for Hegel, is nothing but the principle of
subjective freedom; the capacity of humans to be free and to make freedom itself an object
of willing.
Hegel argues that the principle of freedom is not grasped philosophically in the first
Christian communities, but is realized rather as a feeling or in the idea that "daß der Mensch
als Mensch bestimmt ist für die ewige Seligkeit, ein Gegenstand der göttlichen Gnade,
Barmherzigkeit, des göttlichen Interesses ist, d. h. daß der Mensch absolut unendlichen
Wert hat" (HP Volume I: 127) But, according to Hegel, it is nevertheless this thematisation of
freedom in Christianity which paves the way for the modern conception of individual right.
12 It is important to note that Hegel specifically distances this interpretation of the universal nature of the individual will from the freedom which consists in an exercise of abstraction from everything concrete. This freedom of the pure "I", Hegel argues, characterizes the perception of freedom in Indian religion: "Bei den Indern z. B. wird es für das Höchste gehalten, bloß in dem Wissen seiner einfachen Identität mit sich zu verharren, in diesem leeren Raum seiner Innerlichkeit zu verbleiben, wie das farblose Licht in der reinen Anschauung, und jeder Tätigkeit des Lebens, jedem Zweck, jeder Vorstellung zu entsagen" (PR §5 A). In contradiction to this -purely negative- freedom Hegel emphasizes that the Christian notion is tied in with the actual life of a concrete embodied will (PH, 423, 503).
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Political transformations of the Christian notions of inner spirituality in the Reformation
While Hegel saw the germ of the modern concept of will in the Christian revelation of
God as a human being, he argued that it was not until the thinkers of the Reformation started
questioning the dogmas of the Catholic church that the Christian principle of subjective
freedom was articulated on political and legal terms.
In Hegel's interpretation the Lutheran doctrine turns spiritual attention away from the
outward objects of belief -the worship of the saints or blind performance of rituals- and
inward towards the subjective will. Hegel argues that a key point of Luther's teaching is to
emphasize the possibility of a direct relation between the finite subject and the Divine Being,
i.e. a relation that does not need to be mediated through rituals or through authoritative
interpreters (PH, 416, 496).
The motif of reconciliation is constant in Hegel's interpretation of Luther also when he
emphasizes "[h]e [Luther] maintained that the Spirit of Christ really fills the human heart -
that Christ therefore is not to be regarded as merely a historical person, but that man
sustains an immediate relation to him in Spirit" (PH, 416, 495 emphasis in original).
According to Hegel's interpretation, the transformation inherent in Luther's doctrine
could not be confined to the church; the implicit revelation of human beings as essentially
equal and free necessarily implied a new emphasis on the subjective will in the legitimization
of any future legal and institutional order: it caused a demand for a state-structure that
corresponded to and enabled the realization of that subjective freedom.
According to Hegel the Lutheran doctrine therefore has immediate political
implications because the equality and freedom of all human beings professed in the
Lutheran doctrine of reconciliation gives rise to a new measure by which the justice of laws,
institutions and ethical norms is articulated:
"[c]onsequently Law, Property, Social Morality, Government, Constitutions, etc., must
be conformed to general principles [auf Allgemeine Weise bestimmt werden], in order that
they may accord with the idea of Free Will and be Rational" (PH, 417, 496).
The pathos with which Hegel proclaims the entrance of this new principle into the
scene of world history in PH is so theatrical and dramatic that one almost overlooks the
careful precision of his analysis:
"[i]n the proclamation of these principles is unfurled the new, the latest standard
round which the peoples rally -the banner of Free Spirit, independent, though finding its life
in the Truth, and enjoying independence only in it. This is the banner under which we serve,
and which we bear. Time, since that epoch, has had no other work to do than the formal
10
imbuing of the world with this principle, in bringing the Reconciliation implicit [in Christianity]
into objective and explicit realization" (PH: 416, 496, translators note, emphasis in original).
He repeatedly emphasizes that these changes are not- and cannot be circumscribed
to the individual’s relation to God, they necessarily affect the authority of the church itself
and thereby fundamentally alters the underlying institutions of society (PH, 417, 497).
What Hegel points out is that the individual comes to be perceived as having a
normative measure in and by herself, a measure that comes to have a founding role in the
justification of political and legal order. Thus, according to Hegel, the Reformation constitutes
a turn to individuality which later comes to be reflected or reiterated in modern political
justifications of the state. As noted above such a turn to individuality is absolutely central for
the argument in Hobbes' Leviathan. The question is of course how - or whether - this turn is
related to the turn expressed in the Reformations emphasis on Christian inwardness. When
Hobbes turns to the individual in Leviathan, he turns not to a Christian moral individual, but
to a natural individual, an individual who lives and acts in a pre-legal and pre-normative
condition. As Hobbes approach illustrates, the modern idea of rights carves out a personal
sphere that is normatively neutral; a sphere in which you are free to do what you want with
what is your own. In contradiction to Luther’s theologically founded argument, Hobbes
account of rights constitutes a legitimizing of that which is itself devoid of normative value.13
Thus, in Hobbes theory of rights it becomes normatively important that there exists a private
non-normative realm (in Hobbes the natural sphere) where rights a realized as freedom from
normative constraints: I am free to do what I want to do with what is my own.
Arguably this negative conception of rights (freedom from) does not seem to be a
necessary consequence of the new emphasis on individuality emerging during the
reformation. From this emphasis one might as well expect something like affirmative rights
(freedom to), i.e. rights to participation or rights to be granted the possibility of developing
into an autonomous being. Thus there seems to be something like a missing link in the story
about how we get from the reformation to the modern notions of rights.
In PH Hegel does not explicate how something like a normative value of the
specifically non-normative sphere of arbitrary choice is developed out of the transformation
of the Christian notion of inwardness during the Reformation. Our guess is that one would
have to look into Hegel's Vorlesungen über die Philosophie der Religion (PR) to understand
how he perceives of this transformation and the next version of this paper will contain a
discussion of PR.
However, even if Hegel does not explicate in PH how the non-normative sphere of
choice comes to have normative value in and by itself in the Reformation, the observations
13 We thank Professor Christoph Menke for noting this distinction.
11
he makes in connection with his discussion of Luther in PH suggest that he in fact perceived
such a transformation to be taking place.
In PH Hegel continuously emphasizes Luther's legitimization of the enjoyment
realized in the private sphere over and against the Catholic doctrine of the value of the
renunciation of all worldly pleasure. For instance Hegel mentions Luther's marriage as a
crucial instance by which the societal transformations are brought into motion and argues
that through Luther's embracement of marriage as something "lawful and right" the modern
family was established as that which "introduces man to community - to the relation of
interdependence in society" (PH, 418 and 22, 499 and 503).14 Hegel argues further that the
marriage of priests importantly dissolved the outward distinction between laity and clergy
and this development finally contributed to the questioning of "the [Chatholic] repudiation of
work" leading to the general acknowledgement that it is "more commendable for men to rise
from a state of dependence by activity, intelligence, and industry, and make themselves
independent" (PH, 422, 503). Passages like these seem to celebrate the developments in
the Reformation as a rise of the basic values of the modern capitalist state. This tendency is
even more pronounced in the following quote:
"[it] is more consonant with justice that he who has money should spend it even in
luxuries, than that he should give it away to idlers and beggars; for he bestows it on an equal
number of persons by so doing, and these must at any rate have worked diligently for it.
Industry, crafts and trades now have their moral validity recognized, and the obstacles to
their prosperity which originated with the church, have vanished. For the church had
pronounced it a sin to lend money on interest: but the necessity of so doing led to the direct
violation of her injunctions" (PH, 423, 503).15
The above positive normative evaluation of the rise of civil society and private
economy indicates that, for Hegel, Luther's embracement of the private sphere had
immediate normative implications that are strongly connected to the development of the
modern notion of rights: with Luther, Hegel seems to argue, it became normatively important
that there exists a non-normative private realm.16 Thus, according to Hegel's narrative, the
Reformation legitimized the private sphere as normatively important and introduced the
individual will as the basis of political justification and this was the beginning towards the
realisation modern individual rights. Thus Hegel's claim is that as a result of the Reformation 14 On the significance of the medieval institution of celibacy and the political implications of breaking with this ideal see Berman# and Fukuyama (reference missing#) as well as Hegel (HP: 375, reference to German text missing#).15 For an elaboration of the protestant roots of capitalism see Weber (reference missing#). 16 In the next version of this paper we intend to underpin or refute this reading by comparing Hegel's points about the Reformation in PH to the points he makes in HR.
12
legal and political institutions came to be measured according to their conformity with the will
of man: it became important that the state structure was one that could be willed by rational
and free beings (PH, 440, 522).
Medieval canon law as a precursor to the modern notion of right?As we argue above Hegel finds that the legal and political development of modern
rights begins with the Reformation and the Reformation's break with the ecclesiastical rule of
the medieval church. Thus, in contradiction to Berman, Hegel very much viewed the middle
ages as exactly that: an age that came in the middle of other ages of more significance and
he seems to view the church's main contribution to the development of modern rights as the
ungrateful one of negating the principle of subjective freedom to an extent where opposition
became inevitable.17 As we note in the introduction, Berman's historical findings seem to
qualify - if not outright contradict - Hegel's observations in important ways. However before
we begin to compare Berman and Hegel's interpretation of the legal development that took
place in the medieval ages, it is important to be aware of a basic point on which they seem
to be in agreement, namely that the early Christian societies introduced a new emphasis on
inwardness and a new distinction between spirituality and law.18
In Law and Revolution Berman argues from a historical perspective that a definite
split between faith and law is inherent in the doctrine of the early Christian communities.
While "the church in the first three centuries respected Roman law" it "rejected its absolute
authority" (Berman: 167). Further, Berman argues, "an immoral law was not considered to
be binding on conscience, and indeed there might be a positive duty to disobey it" (Berman:
167). Instead, Berman argues, the early Christian communities emphasized the inner life of
Christians. This emphasis is evident in Paul's letter to the Romans "But now, by dying to
what once bound us, we have been released from the law so that we serve in the new way
of Spirit, and not in the old way of the written code" (Romans 7:6). Berman cites Paul's
letters to the Romans to argue that Paul promoted the idea that "Christians should 17 This ungrateful perception of the medieval ages is reiterated not only in political theory, but also in popular culture. One recent example is the 2011 film The Adjustment Bureau starring Matt Damon and directed by George Nolfi. In the film the main character discovers that he is up against the agents of Fate itself - the men of The Adjustment Bureau - who will do everything to prevent him from succeeding in a romantic affair. When he attempts to talk The Adjustment Bureau out of controlling his life, the bureau’s representative argues that the medieval ages was what happened when they gave up interfering and let human beings work their problems out on their own (see www.theadjustmentbureau.com for further information).18 This observation has been re-iterated may times in the theoretical litterature. One prominent example is Durkheim's discussion of the relation between Christianity and Law in his essay "Individualism and the intellecturals" from 1898 where he notes: "Whereas the religion of the ancient city-state was quite entirely made of external practices, from which the spiritual was absent, Christianity demonstrated in its inner faith, in the personal conviction of the individual, the essential condition of piety. First it tought that the moral value of acts had to be measured according to the intention, a preliminary inward thing which by its very nature escapes all external judgments and which only the agent could completely appraise. The very center of moral life was thus transported from the external to the internal, and the individual was thus elevated to be sovereign judge of his own conduct, accountable only to himself and to his God" (Durkheim: 52).
13
internalize the Biblical law, should believe in their hearts the truth it embodied, and should do
good out of faith and hope and love rather than because of legal commands and sanctions"
(Berman: 167).
Berman thus seems to be in agreement with Hegel that the doctrine of Christianity
gave rise to a new spiritual emphasis on the inner life of individuals as something separate
from- and possibly even in opposition to the governing legal order.
This new emphasis, so Berman argues, directed spiritual attention inward towards
the soul and suggested the notion of conscience as the ultimate normative measure of right
action (Berman: 167).
However, while Berman argues that this emphasis posited the inner spiritual life as
the most important normative issue, he is in agreement with Hegel, that the Christian
doctrine of conscience was not translated into a legal-political doctrine in the early Christian
communities and notes that "[t]here was no effort, indeed opportunity, to reform the law of
the state to conform to divine law" (Berman: 167). Indeed he argues that even after the
conversion of Emperor Constantine and the establishment of Christianity as the official
imperial religion "Christianity was received as an apocalyptic faith, not as a social program"
(Berman: 168).
According to Berman the key to understand this fundamental split between the issue
of faith and law in early Christendom is the early Christian interpretation of the meaning of
the last judgment: for the early Christian communities "the Last Judgment was understood
solely as the inauguration of divine rule in the world to come, imminent or already present, it
did not inspire the creation of parallel legal institutions for the interim period on earth"
(Berman: 169). Berman's point is, that the early Christian faith was apocalyptic in the sense
that attention was directed toward the Last Judgment, the believed imminence of which
made the issue of reforming existing worldly law seem of lesser importance (Berman: 169).
What was of importance was instead tending to the inner condition of the soul, not the
external condition of existing law.
According to both Berman and Hegel this situation of Christian indifference to the
external law began to change in the 10th Century and the push for change reached a
revolutionary character with the Investiture Struggle in the late 11th Century.
The Investiture Struggle, or the Papal Revolution as Berman refers to it, was in
essence a struggle about who possessed the authority to appoint bishops: the pope or the
emperor. In 1070 Pope Gregory VII initiated the Investiture Struggle by proclaiming "the
legal supremacy of the pope, over all secular authorities. Popes, he said, could depose
emperors - and he proceeded to depose Emperor Henry IV. Moreover Gregory proclaimed
that all bishops were to be appointed by the pope and were to be subordinate ultimately to
him and not to secular authority" (Berman: 94). In 1122 the Investiture Struggle was
14
concluded in the Concordat of Worms. The Concordat of Worms was an agreement between
Pope Calixtus II and Holy Roman Emperor Henry V in which "the emperor guaranteed that
bishops and abbots would be freely elected by the church alone" while the pope "conceded
the emperor's right to be present at elections and, where elections were disputed, to
intervene" (Berman: 98).
As noted by Berman, the Concordat of Worms inaugurated the church as "an
independent, hierarchical, public authority" and thereby instituted a complete revolution in
the church's role in relation to politics and its administration of law (Berman: 113).
The church's institutionalization of a legal order was underpinned by the theological
claim that the transcendental justice of God was institutionally paraphrased in the Papal
church. Thus the ecclesiastical legal order was theologically perceived as the secularization
of the divine order, a secularization that consisted of the identification of the institutional
church with the transcendent church. At the same time we see a secularization of the
concept of corpus mysticum of Christ within ecclesiastical political thinking: originally, the
individual body of Christ (corpus vetum) had been perceived to be identical with the spiritual
church, that is with the community of the faithful (corpus mysticum). However, from the 12th
century on the church began to make a distinction between the two, stating that the spiritual
church, the community of the faithful (corpus mysticum), was an independent mystical body.
As a consequence the spiritual church was viewed as an independent body not connected to
the individual body of Christ and thus, the Corpus Christi was changed into the
(independent) corporation of Christ. From here on the way was paved for the development
investigated by Berman of the church as a legal body with its own legal order, institutions
and legitimacy to issue new laws (ius positivum).
The question we raise in the following is to what extent the above historical narrative
sketched above can be mapped onto the Hegelian account of the development of modern
rights, that is to say: to what extent -if any- are legal changes instigated by the Investiture
Struggle related to the legal integration of Christian subjectivity which, according to Hegel,
lies at the root of the modern notion of right?
Although Berman does not pose this question directly, his analysis suggest that the
answer to the question lies in the theological interpretation of the meaning of the Last
Judgment and pervasive changes in this interpretation which preceded the legal reforms that
were propelled into motion through the Investiture Struggle.
What Berman argues is that in the early part of the 11th century "belief in the Last
Judgment acquired a new significance in the West through the development in a parallel
belief in an intermediate judgment upon individual souls at the moment of their death, and an
intermediate time of "purging" between the death of each individual Christian and the final
coming of the divine judge" (Berman: 169).
15
The idea of a purgatory, where the sins of each individual Christian were to be
purged, suggested a conception of sin that was much more legalistic in its form than
previous conceptions of sin, according to which sin was thought of primarily as a "condition
of alienation, a diminution of a person's being" or "the fallen state of a persons soul"
(Berman: 171 and 180). The idea of purgatory suggested instead that sin could be
understood in legal terms as specific wrongful acts or desires or thoughts for which various
penalties must be paid in temporal suffering whether in this life or the next" (Berman: 171).
Thus, Berman argues, a change in the perception of the Last Judgment in turn
transformed the perception of the nature of the spiritual attentiveness to the soul, which was
at the centre of the Christian belief. What was new in the doctrine of purgatory was not only
the legalistic conception of sin in and by itself, but a new focus on individual responsibility
that emerged out of this legalistic conception: if the punishment each individual person was
to undergo in purgatory corresponded to the particular sins that person had committed in her
life then the freedom of choice would have to be seen as the determining factor in the
progress to salvation (Berman: 172). This development further gave rise to a new conception
of sin, according to which sin could be conceptualized through the a strict and rational
relation between specific acts on the one hand and on the other hand the "price" that was to
be paid in terms of the punishment due to be purged of these sins. As a result the sacrament
of penance gained a new significance in the Christian theology of the time and salvation was
seen as related to the notion of God's justice, rather than primarily to the notion of mercy. As
Berman puts it: "[m]an was beginning to take the centre of the stage. His freedom of choice
was becoming the determining factor in his progress towards salvation" (Berman: 171).
From the eleventh century on there was therefore an outburst in theological efforts to
characterize distinctions in motivational attitude necessary to determine whether a given act
was to be regarded as a punishable sin. This effort gave rise to a new area in law: the canon
law of crimes.
Before the eleventh century, criminal law had not been regarded as a legal area in its
own right. In Aristotle's account of law in the Nicomachean Ethics he categorises actions
such as "theft, adultery, [and] poisoning" not to mention "murder, violent robbery, [...] and
character-smearing" simply as "involentary transactions" (Aristotle: 133). Under Roman law
disputes about issues such as theft and battery were treated in terms of tort: the law enabled
individuals that had been harmed to recover their loss. Further, while Roman law was also
based on the idea that intent (animus) was relevant to liability, recovery and punishment
were determined according to the committed action, not the intent (Berman: 192). In
medieval canon law on the other hand the intent became more important than the act itself.
The reason for this change can arguably be traced to the changing conception of the
meaning of the Last Judgement and the new doctrine of purgatory. The new doctrine of
16
purgatory emphasised the need to be purged of your sinfulness. The purpose of the new
canon law of crimen was to enable punishment for criminal actions in this life, a punishment
that was nothing compared to the eternal punishment you would receive in the next life if you
did not regret your actions (and thoughts) before God in this life. In this way canon law
handled both aspects – intent and act – while Roman law only handled the actual act (but
recognized that there was an intent behind the act): by punishing actions in this life, the
canon law could ease the pain and suffering that would otherwise inevitably be accorded to
individuals in the next.
Due to the new understanding of the meaning of the Last Judgement the ultimate
purpose of the medieval canon law of crimen came to be that of restoring the individual soul
to God. This is a significant change away from traditional conceptions of law. Traditionally
the purpose of law was not perceived from a subjective viewpoint but from an objective
viewpoint: the purpose of the law was to bring about the (objectively) just condition. However
through the new doctrine of purgatory, punishment becomes the main purpose of the law, at
least of the canon law of crimes. What happens is that the doctrine of purgatory gives the
law a subjective purpose: the purpose of the law is to punish or reward an individual, and to
restore the individual to God. In contradiction to traditional natural law accounts the purpose
of the canon law is not to bring about an (objective) right condition instead the normative
grounding of the law, its very purpose and ultimate aim became the individual soul.
With his dismissive account of the medieval ecclesiastical law Hegel does not
recognise the significance of this shift of emphasis. And due to his historical -rather than
philosophical- focus Berman does not recognize the philosophical significance of his account
of the medieval law of crimen, namely that the law gives rise, for the first time in history, to
the idea that law can and should be normatively grounded in the individual.
This move towards making intent the central issue in determining legal responsibility
triggered an outburst in legal scholarship aiming at systematising issues related to intent and
motivation. A result of this systematising was a new distinction between criminal sins and
non-criminal sins. Before the 11th century "[t]he words "sin" and "crime" were used
interchangeably both in the "worldly law" and in the "divine law" (Berman: 187). Thus,
before the development of medieval canon law any breach of law was by nature also
regarded as a sin, and any sin was by nature also regarded as a breach of law due to the
perceived divine nature of law. However, according to the new development of criminal law
"[c]riminal sins differed from other sins in that their sinfulness, that is, their offensiveness to
God, was measured by standards of ecclesiastical law applied by ecclesiastical judges
acting under authority of their jurisdiction - rather than by standards of divine law applied by
God himself through priests acting under authority of their ordination" (Berman: 187). Non-
17
criminal sins on the other hands were not subject to ecclesiastical law, but could be judged
only by God.19
It was Peter Abelard (d. 1142) who laid the theoretical basis for the distinction
between sin and crime. According to Abelard's legal systematic all crimes were to be
considered as sins but not vice versa: non-criminal sins were a matter of inner forum (forum
internum) the sacrament of confession, while the outer forum (forum externum) was the
ecclesiastical (and later also secular) court’s responsibility for determining punishment for
crimes against Canon law, i.e. ”criminal sins”, on earth.20 Abelard's initial distinction was
developed further in the works of the ‘decretists’, i.e. the commentators on Gratian's
Decretum dating from 1139-1159, which became the main collection of canon law during the
twelfth century.21
What is remarkable about Abelard’s distinction between criminal and non-criminal
sins is not the idea in and by itself that there are some thoughts that are out of reach by the
law. What is significant is the amount of scholarly effort put into explicating this difference
and systematizing the canon law of crimen according to this distinction. In other words: what
is new is that the fact that secret thoughts exists is perceived to be not only legally relevant,
but of outmost legal importance.
The immediate reason for why secret thoughts become legally relevant is exactly
because now law is about thoughts. To clarify: the fact that the salvation of the soul
becomes the normative foundation of the canon law of crimen changes the significance of
the fact that some thoughts are secret and cannot be adjudicated in (human) law. In
traditional natural law this was simply a legally irrelevant fact of minor importance, however,
with canon laws new emphasis on the individual the externality of this individuals secret
thoughts becomes itself a fact of law. This perceived importance of this new legal fact which
is reflected in the outburst in scholarly discussions about this distinction between criminal
and non-criminal sins.
The result of this new systematic and the distinction between criminal and non-
criminal sins is that a realm of law (secret sins) are carved out of law, not because it is
normatively irrelevant (thoughts were to be judged by God and were indeed the normative
foundation of the canon law of crimen itself) but because it is viewed as unreachable by
(human) law. In this way the canon law of crimes developed a legal conceptualization of
something inherently private by specifying the private realm of secret sins as a limitation
19 This distinction between sin and crime is repeated by Hobbes in Leviathan: " A CRIME, is a sin, consisting in the committing (by deed, or word) of that which the law forbiddeth, or the omission of what it hath commanded. So that every crime is a sin; but not every sin a crime (Hobbes: Ch. 27). 20 For this development, see the now classical study by Stephan Kuttner on Kanonistische Schuldlehre von Gratian bis auf die Dekretalen Gregors IX: Systematisch auf Grund der handschriftlichen Quellen dargestellt (Città del Vaticano, 1935), esp. pp. 1-62. For the following on Abelard and Rufinus, see this.21 See Anders Winroth, The Making of Gratian’s Decretum (Cambridge, 2000).
18
within law itself. This is a new development. In Roman law the idea of a legal person
evolved. That is in Roman law individuals were able to make private claims through law; I
could claim what is rightly mine. But this is not yet the idea that there is a private realm into
which the law cannot penetrate. This idea developed in the medieval canon law of crimen.
In canon law the legal conception of a private realm of thoughts into which law
cannot penetrate is based in practical constraints: only God can see the secret thoughts of
individuals. But there seems to be a normative undertone to this argument. The very fact that
the realm of private thoughts is of utmost normative importance -it is the basis for Gods
assessment of us- suggests that law should not only accept this realm as external (humans
cannot penetrate into the thoughts of other humans) but also protect it as such. Thus, while
the acknowledgement of non-criminal sins is not the idea of the private as such as a
normative space that is to be protected by law the leap form the first legal acknowledgement
of this private sphere to the demand of its protection does not seem to be far. We need to
return to the texts on medieval canon law of crimen with this question on our minds in order
to discern whether there is anything in the medieval scholarship on crimen that suggests
such a move. And we will return to this question in the second draft of the paper.
Whether or not this question is answered affirmatively it is clear that the legal
conception of a private realm, external to law, was given a legal form through the medieval
canon law of crimen. The new normative centrality of the individual gave rise to a legal
distinction between on the one hand sins that could be adjudicated by the church and on the
other hand sins that God alone could judge such as secret sins of thought or desire
(Berman: 187).
In this sense the early Christian emphasis on the importance of inner spiritual life
over and against external law was not simply abandoned through the attempt to develop a
universal ecclesiastical law as Hegel seems to argue. Instead the distinction between law
and faith was given legal expression through the distinction between criminal and non-
criminal sins. Thus ultimate the legal externality of faith was itself integrated into the
medieval law of crimen as a fact of law itself. In this way the legal developments of the papal
revolution gave rise to a new interpretation of the distinction between the inner life of faith
and the external normative measure of law exactly because the Christian emphasis on the
inner spiritual life was sought to be preserved and mapped onto the emerging ecclesiastical
law.22
Berman interprets this development as a step towards the emergence of modern law,
arguing that many of the rules devised in the medieval canon law of crimen have been
22 This should not be understood to imply that the inner life came to be perceived as something completely out of reach by the normative order of the Church, on the contrary the inner spiritual life continued to lie at the center of clerical teaching, but the distinction gave rise, for the first time, to a system of law that specifically carves out a realm of privacy that is of normative importance while being by nature external to law.
19
carried over into modern criminal law (Berman: 189). Hegel on the other hand interprets the
development of ecclesiastical law as a regress, an "infinite falsehood" which prevented the
Christian principle of subjectivity from obtaining a political and legal form (PH: 383). He
argues that this regress escalated after the Papal Revolution and the legal reformations of
with, according to Hegel, marks the beginning of the complete corruption of the Christian
notion of spirituality. Hegel's argument is that the teachings of the church turned the
Christian conception of spirituality into a completely abstract idea by preaching "an elevation
of soul that is ready to renounce all worldly things" on the one hand, and by ruthlessly
usurping worldly power on the other (PH: 414). As a result, Hegel argues, "[t]he Church was
no longer a spiritual power, but an ecclesiastical one" (PH: 381). To Hegel the legal
developments in canon law are therefore not as a positive step forwards towards a modern
conception of law as Berman argues, but must instead be interpreted as an "infinite
falsehood"; a perversion of and ultimately a negation of the early Christian emphasis on the
inner life (PH: 383).
However, according to Hegel's philosophy of history, this "infinite falsehood" does
have a function to play in the development of the realization of subjective freedom, a function
which, as mentioned in the beginning of this section, "only Philosophy can comprehend and
so justify" (PH: 382). For Hegel this function seems to be the purely negative one of
alienating the principle of spirituality to an extent where a countermovement becomes
inevitable. That countermovement is the Reformation which then, as argued above, finally
translates the Christian notion of subjectivity into a political and legal notion paving the way
for a modern conception of rights.
However, our interpretation of Berman's historical narrative of the legal and
conceptual developments in the medieval ages suggest an important qualification of Hegel's
thesis. Even if we read Berman on Hegelian terms it must be granted that the medieval
church had a more constructive role to paly in the development of modern rights. Even if we
grant that its ruthless usurpation of power contradicted its own notion of spirituality and
provoked the political and spiritual reaction of the Reformation, Berman's study of medieval
canon law of crimen makes clear that this cannot be the end of the story. The real
significance of the medieval development of canon law is instead that in the canon law of
crimen the individual is for the first time posited as the normative ground of law. Further, the
medieval canon law of crimes integrates the notion of a private realm untouchable by law
into the law itself through the distinction between criminal and non-criminal sins. In light of
these observation the principle of inner faith, which lies at the heart of the Reformation,
cannot simply express a return to an original Christian notion of inner spirituality. Instead
Berman's narrative seems to imply that even if the Reformation was motivated by a break
with the principles that had come to define the church, it could lend legal and political
20
significance to the principle of individual spirituality exactly because the notion of inner life
had obtained a legal form through the development of the canon law of crimen. In other
words our conclusion has to be that when Luther burned the books of the canon law he set
free not the original Christian inner spiritual relation to Good, but a private individual that had
been given its specific moral form through the ecclesiastical doctrine of purgatory and which
had been made specific exactly by being carved out of the canon law through distinctions
between sin and crime articulated in the canon law itself.
ConclusionThe purpose of this paper was to use Hegel's questions about the Christian
underpinning of the modern notion of rights to reach a better understanding of Berman's
historical research into legal developments in the medieval ages.
Hegel's questions suggest that we should look for the roots of the modern notion of
right, not in secular theories of human beings intrinsic value, but in the Christian notion of
inner faith.
It seems plausible to think that Christianity's new emphasis on the normative
importance of the individual relation to God could give rise to a the idea that the individual
was somehow entitled to legal and political protections, and that this idea in turn could give
rise to the conception of a legal and political order that is normatively grounded in the
individual. Hobbes provides a point of orientation for what this transformation would mean,
but Hegel's thesis raises the question of how and when such a transformation could have
happened historically.
Hegel's own answer to this question is that this transformation was brought into
motion in the Reformation. He argues first that the Lutheran doctrine turned spiritual
attention away from the outward objects of belief -the worship of the saints or blind
performance of rituals- and inward towards the subjective will and secondly that the
transformation inherent in Luther's doctrine could not be confined to the church because the
implicit revelation of human beings as essentially equal and free necessarily caused a
demand for a state-structure that corresponded to and enabled the realization of that
subjective freedom.
While we embrace Hegel's overall thesis we argue that Hegel's analysis overlooks
important developments in medieval canon law, and that these developments paved the way
for the political and legal connotations of Luther's doctrine.
Relying on Berman's research we argue that it is reasonable to trace the legal
transformation of a Christian notion of inwardness to the Papal Revolution in the late 11th
Century which gave rise to an extensive development of ecclesiastical law.
21
An important result of this ecclesiastical development was the canon law of crimen
which resulted in a new legal systematic articulated through the distinction between criminal
and non-criminal sins. The development of the canon law of crimen was motivated by the
new understanding of the Last Judgement and the importance of being purged of sin. The
purpose of the canon law of crimen was thus to punish individual sinners in order to restore
them to God. In contradiction to traditional natural law accounts the immediate purpose of
the canon law was not to bring about an (objective) right condition instead the very purpose
and ultimate aim of this law was the salvation of the individual soul.
Further, in the canon law of crimen a private realm (secret sins) was carved out of
law, not because secret sins are normatively irrelevant but because they were viewed as
unreachable by (human) law. In this way the canon law of crimes developed a legal
conceptualization of something inherently private by specifying the private realm of secret
sins as a limitation within law itself.
Hegel does not recognise the significance of medieval legal developments because
of his dismissive account of the medieval ecclesiastical law. Further, due to his historical
focus Berman does not recognize the philosophical significance of his account of the
medieval law of crimen, namely that the law gives rise, for the first time in history, to the idea
that law can and should be normatively grounded in the individual.
Whith this in mind we can finally return to the beginning and ask: was there a legal
conception of subjective freedom in the medieval ages? The answer to this question has to
be no: the medieval canon law does not embrace anything that could reasonably be
identified with a legal notion of subjective freedom articulated through a modern notion of
right. That been said Berman's account of the development of medieval criminal law, and the
acknowledgement of a legal unity -the medieval canon law of crimen- that was normatively
grounded in individuality, proves that the question is not as absurd as it might appear at first.
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