The Legitimacy of Non Reigning Royal Families

by Salvatore Caputo

  Constitutional monarchy. In a constitutional monarchy, the monarch is largely a ceremonial figurehead subject to a constitution. Sovereignty rests formally with and is carried out in name of The Crown, but politically rests with the people (electorate), as represented by the parliament or other legislature. Constitutional monarchs have limited political power, and are constituted by tradition and precedent, popular opinion, or by legal codes or statutes. They serve as symbols of continuity and the state and carry out largely ceremonial functions. Still, many constitutional monarchs retain certain privileges (inviolability, sovereign immunity, an official residence) and powers (to grant pardons, to appoint titles of nobility). Additionally, some monarchs retain reserve powers, such as to dismiss a prime minister, refuse to dissolve parliament, or withhold Royal Assent to legislation, effectively vetoing it.

  SOVEREIGNTY

  Sovereignty is the quality of having supreme, independent authority over a geographic area, such as a territory. It can be found in a power to rule and make law that rests on a political fact for which no pure legal explanation can be provided. In theoretical terms, the idea of "sovereignty", historically, from Socrates ((469-399 B.C.E.) to the English philosopher Thomas Hobbes (5 April 1588 – 4 December 1679), has always necessitated a moral imperative on the entity exercising it.

  The Roman jurist Ulpian (c. 170 – 228) observed that:

  The imperium of the people is transferred to the Emperor,

  The Emperor is not bound by the law,

  The Emperor's word is law. Emperor is the law making and abiding force. Ulpian was expressing the idea that the Emperor exercised a rather absolute form of sovereignty, although he did not use the term expressly. Ulpian's statements were known in medieval Europe.

  In Medieval times, sometimes referred to as the Dark Ages, kings were sovereign. Ordinary people were vassals or subjects. People believed that kings had a divine right to rule their subjects. Sovereign immunity (protecting the sovereign from being sued) protected kings, as God's governmental representatives, from court challenges initiated by their subjects. Actually, absolute sovereign immunity was already being reduced in England as early as 1215 by documents such as the Magna Carta.

  Indivisibility Indivisibility has long been among the defining characteristics of sovereignty. As Hans J. Morgenthau once stated this point, “sovereignty over the same territory cannot reside simultaneously in two different authorities, that is, sovereignty is indivisible.” Sovereignty cannot be divided without ceasing to be sovereignty proper, and precisely this quality of being indivisible distinguishes sovereign authority from other forms of political power. Dividing sovereignty between two or more authorities within a given state would therefore be to dissolve that state into parts. The indivisibility of sovereignty is thus a necessary condition of the unity of the state.

  Absolutism Absolutism is a political theory and form of government where unlimited, complete power is held by a centralized sovereign individual, with no checks or balances from any other part of the nation or government. In effect, the ruling individual has ‘absolute’ power, with no legal, electoral or other challenges to that power. In practice, historians argue about whether Europe saw any true absolutist governments, or how far certain governments were absolute, but the term has been applied – rightly or wrongly - to various leaders, from the dictatorship of Hitler, to monarchs like Louis XIV of France, to Julius Caesar.

  Divine right of kings The divine right of kings, or divine-right theory of kingship, is a political and religious doctrine of royal and political legitimacy. It asserts that a monarch is subject to no earthly authority, deriving the right to rule directly from the will of God. The king is thus not subject to the will of his people, the aristocracy, or any other estate of the realm, including the Church. According to this doctrine, only God can judge an unjust king. The doctrine implies that any attempt to depose the king or to restrict his powers runs contrary to the will of God and may constitute a sacrilegious act.

  Divine right in Asian countries In China and East Asia, rulers justified their rule using a similar concept called the Mandate of Heaven. It was similar to the European notion of the divine right of kings in that both sought to legitimize rule from divine approval. However, while the divine right of kings granted unconditional legitimacy, the Mandate of Heaven was conditional on the just behavior of the ruler. Heaven would bless the authority of a just ruler, but would be displeased with a despotic ruler and would withdraw its mandate. The Mandate of Heaven would then transfer to those who would rule best.

  Whereas revolution is never legitimate under the divine right of kings, the philosophy associated with the Mandate of Heaven approved of the overthrow of unjust rulers. In China, the right of rebellion against an unjust ruler had been a part of the political philosophy ever since the Zhou dynasty, whose rulers had used this philosophy to justify their overthrow of the previous Shang dynasty. Chinese historians interpreted a successful revolt as evidence that the Mandate of Heaven had passed.

  The rajas and sultans of the Malay States (now Malaysia and Brunei) as well as their predecessors, such as the Indonesian kingdom of Majapahit, also claimed divine right to rule. The sultan is mandated by God, and the sultan is expected to lead his country and people in religious matters, ceremonies as well as prayers. This divine right is called Daulat, and although presently, the notion of divine right is somewhat obsolete, one can still see banners and posters with pictures of the reigning sultan with words Daulat Tuanku, similar to the European proclamation of "Long lives the King", on streets and buildings. In Indonesia, especially on the island of Java, the sultan's divine right is more commonly known as the wahyu, or 'revelation', but it is not hereditary, and can be passed on to distant relatives.

  The concept of sovereignty to medieval Christendom

  But sovereignty was not an important concept in medieval times. Medieval monarchs were not sovereign, at least not strongly so, because they were constrained by, and shared power with, their feudal aristocracy. Furthermore, both were strongly constrained by custom.

  Sovereignty existed during the Medieval Period as the de jure rights of nobility and royalty, and in the de facto capability of individuals to make their own choices in life. Throughout much of European history, the most important rival to sovereign claimants was the Church. The

  political authorities' efforts to collect taxes, make rules, and appoint officials were continually checked by religious institutions, which made rival claims to sovereign power or sought to protect their resources and jurisdictions from external interference

  Disputes between popes and emperors often can be restated in terms of sovereignty; but if the two sides had understood this term, they would have had no dispute over it. As Christians, both recognized that some things were Caesar‘s and others, God‘s. The emperor held sovereign power over those things secular and the pope was sovereign over those things deemed to be divine. But to admit divided sovereignty is to make the concept almost meaningless. The papal-imperial controversies were not about sovereignty but about political predominance.

  Medieval political thought was inherently both constitutional and hierarchical. The rights and duties of kings were proper matters of dispute, but all agreed that they were bound by law—indeed, by different types of law: eternal, divine, natural, and positive law. Kings might claim to have the sole right to declare what the positive law was, but they could not claim to create it. The idea of creating new law by statute was an idea new to the Renaissance. To claim that the king was above the law would previously have been a kind of blasphemy; and to claim that “law” meant only what the king or sovereign body in fact enforced would have appeared a trivial cynicism.

  The idea that princes do not simply rule but do so legitimately, or by right, is recurrent in the history of Western political thought. When the earliest systematic commentator in the English common law tradition, Henri Bracton, wrote in the twelfth century: ‘a prince rules either by force or by law,’
he meant that law is not merely coercion but legitimate coercion. Rulers’ ability to justify their power, to demonstrate that it embodies right rather than sheer force, was pivotal for ensuring the continuity of political institutions. As later writers like Machiavelli understood all too well, almost anybody could usurp power but few could keep it— the conservation of political power demanded legitimacy.

  Medieval politics moreover was not neatly divided into distinct spheres of competence, rank, or office. It was marked by multiplicity: one and the same person could hold multiple titles, or different rulers—that is, persons of different social, religious and political status—can have pretensions for the same title. This is reflected in the vocabulary of the medieval tradition. ‘Prince’ for example was a word applied to nobles of high standing but also to the emperor and even the pope. Its meaning originated in Roman law: princeps (‘first governor’) or ‘Roman emperor’. To be prince meant to be ‘one who governs others but who obeys none’—or what today we call a sovereign ruler. And it was not simply barons and dukes, but also popes and emperors as well as prelates who disputed among themselves the title of prince or the right of sovereign power.

  In the classical Roman Empire, the emperor was supreme in civil matters but also in ecclesiastical ones—he legislated freely on religious questions, over the head of the pope. Imperial power was ‘absolute’ and the papacy could not dream to challenge it. But the situation changed when Germanic tribes stepped in to fill the institutional void left by the disappearance of Pax Romana.

  Having accepted Catholicism around 800AD, Teutonic princes and their kings recognized the spiritual authority of the pope. This accounts for the traditionally strong connection between lay princely power and ecclesiastical princes (bishops and archbishops) in Germany in medieval times. After Teutonic peoples united into the new Carolingian empire and subsequently into the German empire, the German emperor initially commanded significant power vis-à-vis the pope, since, as before, and under the classical Roman principle, papal coronation was part of the ceremony for accession to the emperor’s throne. But after the crisis of a weak papacy during the ninth and tenth centuries ended, the balance of power came to favorthe Holy See. Popes started to interfere in politics as lay rulers. The pope for example began to demand, and on occasion was successful, the right to nominate candidates for the imperial election and finally, even to depose emperors.

  Sovereignty and Rights in Medieval and Early Modern

  “Jurisprudence: Law and Norms without a State - Kenneth Pennington Catholic University of America, Washington, D.C.” Beginning in the eleventh century, European legal systems made the slow transition from customary, largely unwritten, law to legal systems in which law was incorporated into the written word. During this period, laws and customs were not only written down, but jurists began to comment on them systematically. The result was that Europe experienced a remarkable rebirth of jurisprudence after 500 years of being a land without jurists. The main institutional basis of this revival was the teaching of ancient Roman law, and afterwards, canon law, in the schools of Italy.

  The first center of legal studies was Bologna. Pepo, Irnerius, and others begin to explicate the Emperor Justinian’s (535-565 A.D.) sixth-century compilation of Roman law, the Corpus iuris civilis, significant parts of which had lain dormant and unused during the intervening five centuries. Justinian’s Corpus iuris civilis became the libri legales, the textbooks that new schools of law used during the twelfth century. These libri legales became the cornerstones of a new jurisprudence.

  Gratian began compiled his book, a liber legalis for ecclesiastical law in the early twelfth century, perhaps as early as 1120, and by 1140-1160, his book was being used as the fundamental compilation of canon law all over Europe. By the first decades of thirteenth century, Gratian’s book was supplemented by a large number of books that collected papal case law, the decretals. Papal case law provided a rich and varied set of problems that the jurists explored in their commentaries and in the classroom.

  As a consequence of the establishment of authoritative libri legales, law became an academic and intellectual discipline in a very short time. Student demand was great. Knowledge of law became economic coin. Law schools began to pullulate in Italy, Southern France, and Spain during the twelfth and thirteenth centuries. The curriculum was exactly the same everywhere: Justinian’s Corpus iuris civilis and Gratian’s Concordia discordantium canonum, or, as it was more commonly called, the Decretum, with papal decretals. As the study of law became entrenched in the schools of Europe, students began to study and to receive degrees in both laws: They became ‘Doctores utriusque iuris.’

  The jurists called the body of law that they studied, Roman and canon law, the Ius commune. It became the universal law of Europe from the early twelfth to the seventeenth century. During the reign of the Ius commune, teachers in the law schools throughout Europe not only used the same libri legales in their classrooms; they also used the same language of instruction: Latin. This lingua franca guaranteed that the focus of the law was universal and not particular. Liberated from the linguistic borders that limit intellectual horizons today, medieval students could attend any law school in Europe. One consequence of the schools’ curriculum was that they did not teach local customary or statutory law.

  NOBILITY

  The nobility of a person might be either inherited or earned. Nobility in its most general and strict sense is an acknowledged preeminence that is hereditary, i.e., legitimate descendants (or all male descendants, in some societies) of nobles are nobles, unless explicitly stripped of the privilege. In this respect, nobility is distinguished from British peerage: the latter can be passed to only a single member of the family. Another confusion of the term nobility is with aristocracy. The latter term is often used (abused) in an informal way, but in the strict sense it is a political term related to a form of government.

  Nobles typically commanded resources, such as food, money, or labor, from common members or nobles of lower rank of their societies, and could exercise religious or political power over them. Also, nobles typically, but not necessarily were entitled to land property, which was reflected in the title. For example, the title Earl of Chesterfield (The Earls of Chesterfield were an aristocratic family from Derbyshire, England. Their ancestral seat is Bretby Hall at Bretby, Derbyshire), and their family name is "Stanhope". Upon the death of the twelfth Earl, the title became extinct, as no more male descendants of the first Earl were living) tells about property, while the title Earl Cairns was created for a surname (The title of Earl Cairns was created in 1878 for Hugh Cairns, 1st Baron Cairns, the Lord Chancellor). However all the above is not obligatory; quite often nobility was associated only with social respect and certain social privileges. An example of the latter would be Polish Szlachta (Szlachta were the privileged class in Poland from the late middle ages up to 18th and to a lesser extent to the 19th century).

  Yesterday like today all of those that were in the neighbored of the Royal Court were noble. Many of them inherited their titles at birth, some others by the king himself. This practice exists today but with a wider range because of many changes in the International Protocol and Slavic Law or other Nobility´s rules. Now, more people can be honored.

  In fact, after the last two World Wars, some royals and noble families were conscious that their number was decreasing. Changes had to be done to increase this number in a way to keep nobility well alive and active. For instance, even today, a non reigning Prince can transmit titles or create new one! It is also common practice today, that a nobleman marries a commoner. The wife will inherit her husband´s titles and their heirs too. In Middle Age it was not permitted and it was disgraceful to do so.

  The German Nobility was the elite hereditary ruling class or aristocratic class from ca. 500 B.C. to the Holy Roman Empire and what is now Germany. In Germany, nobility and titles pertaining to it were bestowed on a person by sovereigns, and then passed down through legitimate children. In
a few cases, families which had been noble as far back as historical records document, their ancient nobility was recognized rather than conferred by a sovereign. Noble rank was usually granted by letters patent on men, whereas women could legally become members of the nobility by marrying a nobleman. Nobility was always inherited equally by all legitimate descendants in the male line of the original man who had been ennobled. German noble titles were also usually inherited by all male-line descendants, although occasionally they descended by male primogeniture, especially in Prussia.Noble families were almost always bearing a coat of arms. Blazoning an escutcheon was no privilege of nobility, also nonnoble free families could bear coats of arms and non-noble crests are recorded since the 14th c.

  The Italian Nobility comprised individuals and their families of Italy recognized by sovereigns, such as the Holy Roman Emperor, the Holy See, Kings of Italy or certain other Italian kings and sovereigns as members of a class of persons officially enjoying hereditary privileges which distinguished them from other persons and families. They often held lands as fiefs and sometimes were endowed with hereditary titles. Medieval "Italy" was a set of separate states until 1870, and had many royal bloodlines. Italian royal families were often related through marriage to each other and to other European royal families.