Lex animata

Lex animata (the law animate) is a Latin term for the law being embodied in a living entity, usually the sovereign by the grace of God. In that sense a king could be lex animata, a living, breathing law. The equivalent Greek term, used in the Byzantine Empire, is νόμος ἔμψυχος, nómos émpsychos.[1]

Originating in Hellenistic philosophy, the identification of the Roman sovereign as nomos empsychos was established in law by the Byzantine emperor Justinian I in his Novellae Constitutiones, and imported from there into Western civil law by the medieval glossators. Over time, the label was extended from the emperor to the various European kings. In some formulations, the argument went both ways: the king was law, but he could not do but as the law instructed.[2]

History
Accursius (c. 1182 – 1263) contributed to establishing the doctrine of lex animata in medieval law.

The concept of nomos empsychos is typically considered to have originated in a Hellenistic theory of kingship, which developed after Alexander the Great in the 3rd–2nd centuries BC and drew on the Platonic idea of the philosopher acting as founding lawgiver to the polis.[3][4] Aristotle, in his Nicomachean Ethics (mid-4th century BC), already describes the ideal judge as "living justice" (δίκαιον ἔμψυχον, díkaion émpsychon).[5]

The first surviving use of the form nomos empsychos, however, is found in a pseudo-Pythagorean work, attributed to Archytas but probably dated after 50 BC.[6] The Constantinopolitan orator Themistius used the label to describe Emperor Constantius II in 350 AD,[7] and the concept had gained wide currency by late antiquity.[6] The notion of the emperor as nomos empsychos—later translated into Latin as lex animata—was established officially in the 6th century Corpus Juris Civilis of Justinian I, which would come to serve as one of the foundations of later civil law in the West.[8][9] Justinian's formulation, compiled by Tribonian,[8] runs:

The Emperor, however, is not subject to the rules which We have just formulated, for God has made the laws themselves subject to his control by giving him to men as an incarnate law [nomos empsychos]. (Novellae 105.2)[10]

In the Middle Ages, the glossators of the 12th and 13th centuries, notably Accursius, applied the concept of lex animata to the Holy Roman emperor.[11] Accursius rendered the principle in the Code of Justinian as princeps est lex animata in terris ("the prince is the law animate on earth"), and argued that all holders of ordinary jurisdiction over particular geographical areas derived their right from the emperor as living law.[12]

The term was also used of the pope by hierocratic writers,[13] and it was ultimately extended to individual kings, as the French jurist Barthélemy de Chasseneuz did in the case of the king of France in his 1529 Catalogus gloriae mundi.[14] The 14th century Italian jurist Baldus de Ubaldis wrote, "Rex est lex animata ... Ego dormio et cor meum, id est, Rex meus, vigilat" ("The king is the law animate ... I sleep and my heart, that is, my king, keeps watch"),[15] and in his 1598 The True Law of Free Monarchies, James VI of Scotland also referred to the concept when he affirmed "the old definition ... which makes the King to be a speaking law and the law a dumb King".[16]

The concept of the king as lex animata faced resistance in medieval English law, however. When Parliament ratified the deposition of Richard II in 1399, it listed as one reason the fact that Richard had believed "that the laws were in his own mouth".[17] Despite paralleling Byzantine political ideas in other respects, Islamic philosophy also departed from the notion of nomos empsychos by conceiving the caliphs as administering the sharia established by Muhammad rather than as lawgivers in their own right.[18] The idea of the lex animata was later deconstructed more systematically by Montesquieu and other constitutional thinkers of the Enlightenment, with Montesquieu pronouncing that iudex est lex loquens: "the judge", not the king, "is the law speaking", and the judge is not animate, but "inanimate", deriving rather than inventing the law.[19]

Modern usage

The idea of lex animata is sometimes used in modern political debate, usually to scorn an opponent for being too self-important or delusional about his insights into the law and constitutional affairs. In judicial circles it is sometimes used in jest, recognising a peer as an authority on the law in general.

See also

References
  1. Nicol, D. M. (1988). "Byzantine political thought". In Burns, J. H. (ed.). The Cambridge History of Medieval Political Thought, c. 350–c. 1450. Cambridge: Cambridge University Press. p. 64.
  2. Rutherford, Samuel (1644), Lex, Rex [The Law and the Prince], Constitution.
  3. Voegelin, Eric (1997). History of Political Ideas, Volume 1: Hellenism, Rome, and Early Christianity. Columbia: University of Missouri Press. p. 104.
  4. Wood, Ellen Meiksins (2008). Citizens to Lords: A Social History of Western Political Thought from Antiquity to the Late Middle Ages. London: Verso. pp. 103–104.
  5. O'Neil, James L. (2000). "Royal Authority and City Law under Alexander and His Hellenistic Successors". The Classical Quarterly. 50 (2): 430. doi:10.1093/cq/50.2.424. JSTOR 1558900.
  6. Van Nuffelen, Peter (2011). Rethinking the Gods: Philosophical Readings of Religion in the Post-Hellenic Period. Cambridge: Cambridge University Press. p. 116.
  7. Stertz, Stephen A. (1976). "Themistius: A Hellenic Philosopher-Statesman in the Christian Roman Empire". The Classical Journal. 71 (4): 350. JSTOR 3298499.
  8. Dvornik, Francis (1966). Early Christian and Byzantine Political Philosophy: Origins and Background. Vol. 2. Washington, DC: Dumbarton Oaks Center for Byzantine Studies. p. 722.
  9. Canning, Joseph (2011). "Civil (Roman) Law". In Lagerlund, Henrik (ed.). Encyclopedia of Medieval Philosophy: Philosophy Between 500 and 1500. Dordrecht: Springer. p. 221.
  10. "The Novels of Justinian: Novel 105 (Scott)". The Roman Law Library. Université Grenoble Alpes. Retrieved 22 May 2021.
  11. Thornhill, Chis (2011). A Sociology of Constitutions: Constitutions and State Legitimacy in Historical-Sociological Perspective. Cambridge: Cambridge University Press. p. 35.
  12. Perrin, John W. (1973). "'Legatus' in Medieval Roman Law". Traditio. 29: 372. doi:10.1017/S0362152900009016. JSTOR 27830959. S2CID 152014184.
  13. Wilks, M. J. (1963). The Problem of Sovereignty in the Later Middle Ages: The Papal Monarchy with Augustinus Triumphus and the Publicists. Cambridge: Cambridge University Press. p. 162.
  14. Randall, Michael (2008). The Gargantuan Polity: On the Individual and the Community in the French Renaissance. Toronto: University of Toronto Press. p. 166.
  15. Kantorowicz, Ernst (1957). The King's Two Bodies: A Study in Mediaeval Political Theology. Princeton: Princeton University Press. p. 131.
  16. Viñuales, Jorge E. (2013). "Recherches sur le fondement de la légitimité judiciaire". In Dupuy, Pierre; Chetail, Vincent (eds.). The Roots of International Law / Les fondements du droit international (in French). Leiden: Brill. p. 566.
  17. van Dijk, Conrad (2013). John Gower and the Limits of the Law. Cambridge: D. S. Brewer. p. 98.
  18. al-Azmeh, Aziz (2007). The Times of History: Universal Topics in Islamic Historiography. Budapest: Central European University Press. p. 284.
  19. van den Berge, Lukas (2017). "Montesquieu and judicial review of proportionality in administrative law: Rethinking the separation of powers in the neoliberal era". European Journal of Legal Studies. 10 (1): 210. SSRN 3041325.
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