Tea at Trianon: The Fiat of the Prince

John Wilson Croker on Marie-Antoinette

"We have followed the history of Marie Antoinette with the greatest diligence and scrupulosity. We have lived in those times. We have talked with some of her friends and some of her enemies; we have read, certainly not all, but hundreds of the libels written against her; and we have, in short, examined her life with– if we may be allowed to say so of ourselves– something of the accuracy of contemporaries, the diligence of inquirers, and the impartiality of historians, all combined; and we feel it our duty to declare, in as a solemn a manner as literature admits of, our well-matured opinion that every reproach against the morals of the queen was a gross calumny– that she was, as we have said, one of the purest of human beings."

~from History of the Guillotine by John Wilson Croker, 1844

Edmund Burke on Marie-Antoinette

"It is now sixteen or seventeen years since I saw the queen of France, then dauphiness, at Versailles; and surely there never lighted on this orb, which she hardly seemed to touch, a more delightful vision. I saw her just above the horizon, decorating and cheering the elevated sphere she had just begun to move in, glittering like a morning star full of life and splendor and joy. Oh, what a revolution....Little did I dream that I should have lived to see such disasters fall upon her, in a nation of gallant men, in a nation of men of honor and of cavaliers! I thought ten thousand swords must have leaped from their scabbards, to avenge even a look which threatened her with insult. But the age of chivalry is gone; that of sophisters, economists, and calculators has succeeded...."

~Edmund Burke, October 1790

Thursday, March 13, 2025

The Fiat of the Prince

From The New Digest:

Let me begin with that rather large question: What is the foundation of the rule of law? The modern answers are familiar. Among them are equal justice, treating like cases alike; the prevention of arbitrary exercise of power; the protection of human dignity; and legal certainty and predictability. These are right as far as they go, or at least not exactly wrong, but I will explore an older answer, given by (or at least in the name of) the English civilian jurist Bracton — an answer that I think places the rule of law in a wider and deeper perspective. On the view I will explore, the foundation of the rule of law is Marian political theology, specifically a Marian interpretation of the Digna Vox, a famous text of the Roman civil law.
“Bracton,” or more precisely the text conventionally attributed to Henry of Bracton (1210-68), is probably a collective work of the mid-13th century, on the laws and customs of England. The Bracton text brought a distinctively Romanizing influence to English law, with the extent and duration of that influence being a much-debated topic. Bracton writes: “The king has no equal within his realm. Subjects cannot be the equals of the ruler, because he would thereby lose his rule, since equal can have no authority over equal, nor a fortiori a superior, because he would then be subject to those subjected to him. The king must not be under man but under God and under the law, because law makes the king…. Jesus Christ willed himself to be under the law that he might redeem those who live under it. For He did not wish to use force but judgment. And in that same way the Blessed Mother of God, the Virgin Mary, Mother of our Lord, who by an extraordinary privilege was above law, nevertheless, in order to show an example of humility, did not refuse to be subjected to established laws. Let the king, therefore, do the same, lest his power remain unbridled” (emphasis added).
I want to bring this passage into association with the Digna Vox, which Bracton’s text unmistakably echoes. The latter is a fundamental constitution or imperial edict of the Codex Theodosianus (later embodied in the Codex Justinianus), and was issued jointly at Ravenna in 429 by the Christian co-emperors Theodosius II in the west and his son-in-law Valentinian III in the east. It is a principal, founding text of the rule of law in the Western legal tradition — and, I note tendentiously against more recent legal theorists, long predates any talk of subjective rights in the modern sense, or the separation of powers, or judicial review, or any of a number of other legal mechanisms that are now sometimes said to be essential to the rule of law. I suppose the Digna Vox is quite familiar to civil lawyers and probably to a number of non-lawyers too, but I take the liberty of quoting it just because of the majesty of the proclamation, which itself explains in what consists the majesty and authority of the prince. (Read more.)