The Mercenary Mediterranean_ Sovereignty, Religion, and Violence in the Medieval Crown of Aragon - Hussein Fancy

sovereigns and slaves 69

sought to ground royal authority and legitimacy upon the Roman idea

of royal law (lex regia), which is to say upon the exclusive power of the

emperor to make law — upon his sovereignty, his absolute jurisdiction

(merum imperium).^116 For scholars like Joseph Strayer and Ernst Kanto-

rowicz, the intellectual work of these jurists marked a turning away from

theological towards legal, rational, and secular justifications for political

authority across thirteenth- century Europe.^117

From the perspective of medieval jurists, the glossators who read and

commented on Roman law, however, the line between law and theology

was not so clean and clear. For instance, in reading the Digest, the sixth-

century law code of the Emperor Justinian I (r. 527 – 565 ), these glossators

recognized something exceptional in the twin adages, “whatever pleases

the Prince has the force of law (quod principi placuit legis habet vigorem)”

and “the Prince is free from the laws (princeps legibus solutus est).”^118 If

the sovereign was the source of law, then it followed that his authority

could never fully be contained within or restrained by law.^119 Conserva-

tive and liberal historians, political philosophers, and legal theorists from

Carl Schmitt to Giorgio Agamben, John Austin to Hans Kelsen, have

recognized an absolutist streak in these ideas — an arbitrary and violent

potential in the notion of the sovereign exception that posits an absent

foundation of the law.^120 Nevertheless, as Brian Tierney has argued, for

influential medieval glossators such as Accursius (ca. 1182 – 1263 ), sover-

eignty was not ungrounded or unbound.^121 Although the king could not be

forced to obey the law, Accursius nevertheless expected him to respect it

voluntarily because law was a gift from God.^122 That is, if the king stood

above human or positive law, then he also lay beneath and subject to di-

vine or natural law.^123 In other words, political ideas were inextricable

from theological ones precisely because earthly order mirrored divine or-

der. The Accursian gloss of legibus solutus est depended upon a particular

theology and understanding of nature. Following but also responding to

Schmitt, Kantorowicz borrowed the mixed expression “political theol-

ogy” to describe this medieval juridical discourse. Although Kantorow-

icz saw the connection between theological and legal concepts as purely

formal, a matter of borrowing, I employ the expression here to empha-

size the continual and dynamic exchange between legal and theological

ideas.^124

If one accepts that law and theology were interrelated in this period,

then it also follows that ideas about political sovereignty both shaped and

were shaped by ongoing debates about God’s sovereignty, about the nature