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 PEReml@sam.sdu.dk

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.

3

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

5

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.

7

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).

9

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.

Bibliography:

Aristotle (1999), Niccomachean Ethics (translated by Martin Ostwald), Prentice Hall.

Aquinas, Thomas (1981), Summa Theologiae, translated by the English Dominican Fathers,

Christian Classics.

Berman, Harold J. (1983), Law and Revolution, Harvard University Press.

Durkheim, Emile (1973), "Individualism and the Intellectuals" (translated by Mark Traugott)

reproduced in Emily Durkheim on Morality and Society, The University of Chicago Press.

Fukuyama, Francis (2011), The Origins of Political Order: From Prehuman Times to the

French Revolution, Farrar, Straus and Giroux.

22

Hegel, G. W. F. (1970), Werke, Band 18, Vorlesungen über die Geschichte der Philosophie

I, Theorie-Werkausgabe, Suhrkamp.

Hegel, G. W. F. (1986), Werke, Band 7, Grundlinien der Philosophie des Rechts. Frankfurt:

Suhrkamp.

Hegel, G. W. F. (1986), Werke, Band 12, Vorlesungen über die Philosophie der Geschichte.

Suhrkamp.

Hegel, G. W. F. (2008), Outlines of the Philosophy of Right, Oxford University Press.

Hobbes (1996), Leviathan, Rev Stu edition, Cambridge University Press.

Kuttner, Stephan (1935), Kanonistische Schuldlehre von Gratian bis auf die Dekretalen

Gregors IX: Systematisch auf Grund der handschriftlichen Quellen dargestellt. Città del

Vaticano.

Schwarzenbach, Sibyl A. (1991), " Rawls, Hegel, and Communitarianism", Political Theory,

Vol. 19, No. 4.

Strauss, Leo (1952), The Political Philosophy of Hobbes, The University of Chicago Press.

Winroth, Anders (2000) The Making of Gratian’s Decretum, Cambridge University Press.

Zarka, Yves Charles (1994), "The Invention of the Subject of the Law", British Journal for the

History of Philosophy, Vol. 7, No. 2.

23