앞에서 일부 살펴봤던 책, 《The King's Two Bodies: A Study in Mediaeval Political Theology》를 좀 더 살펴보고 싶다. 내 전공 분야는 아니지만, 아주 훌륭한 책이다. The King Never Dies(The King's Two Bodies...)에서 이 책 7장(왕은 죽지 않는다)의 내용을 일부 봤고, rex qui nunquam moritur (The king's two bodies)에서 일본어판으로 옮긴 내용도 흘깃 봤었다. 같은 책의 6장(연속성과 단체 On Continuity and Corporations)도 더 살펴보고 싶다. "단체 혹은 법인corporations" 개념이 싹트게 된 논리적(이 저자는 정치신학political theology이라고 부른다) 배경을 몰랐을 때 번역한 다른 책의 한 문장과 그 문단이 결정적인 오역으로 흘렀기 때문이다.
저자는 6장에서 연속성과 단체에 대한 로마법의 흐름을 토대로 삼아서 "영원히 죽지 않는 왕" (즉 그러한 신비한 인격체로서의 왕권)이라는 개념이 어떻게 태어났는지 7장으로 넘어가는 흐름이다. 대단한 책이다.
자료: 구글 북스,
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Chapter 6. On Continuity and Corporations
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To summarize, the continuity of the people and the state derived from many sources, and in general it may be said that theory followed existing practice. Without depending on any broader philosophical outlooks the administrative technique of the state developed its own patterns of continuity. Theory, however, was effective in other respects. The ^lex regia^ asserted the perpetuity of the Roman people, [63] and by trasferring that claim from the Romans to others as well, the perpetuity of any and every people was, so to speak, legally confirmed. Finally, the Aristotelian and Averroist doctrines brought about a consciousness of "natural" perpetuity in a philosophical sense, whereby the tenet concerning the eternity of the genera and species proved particularly useful to the lawyers who for purely juristic reasons defended the continuity of collective bodies and the immortality of juristc universals and species.
UNIVERSITAS NON MORITUR
Though probably rewarding, it would be nevertheless complicated and tiresome to try to build up a concordance of scholoastic and juristic thought, or to hazard a decision as to whether the philosophic notions which the jurists used rather indiscriminately for defining their legal abstractions (forms, species, genera, universals, and their like), reflected any clearly determinable school concepts, nominalistic or other, as has occasionally been suggested.[64] There is no doubt, however, but that the jurists borrowed abundantly from the vocaubulary of scholastic philosophy, that they moved freely in the borderlands of theology, philosophy, and jurisprudence, and applied, more or less eclectically, the scholastic matrix to express their own ideas. According to language and content, for example, the jurists' "fictitious" or "intellectual" persons are hardly distinguishable from the Universals which the nominalists liked to call ^fictiones intellecuales^[65] Moreover, the doctrine of the perpetual "identity despite change" of a community--Bologna, for instance--might be taken to refer to the ^eidos^ of Bologna, which was distinct from the material city at any given moment and detached from both the citizens living at present within Bologna's walls and the bricks forming at present those very walls. We might also consider the great ease with which the philosophers following Duns Scotus formed abstract notions such as ^Socratitas^ to designate the principle of individuation by which the generic "man" became the individual Socrates. Though hardly depending upon the Scotists, the jurists nevertheless created something comparable. For between the generic ^communitas^ or ^universitas^ on the one hand, and the individual and material community of Bologna composed of mutable citizens and perishable buildings on the other hand, there arose a third entity different from both, an entity which was immaterial and invariable, though not devoid of individuation, which existed (as it were) in some perpetual ^aevum^, and which appropriately might have been called ^Bononitas^ or "Bolognity", had the lawyers not preferred to talk about the corporate ^universitas^--that is, the juristic person or personified community--of Bologna. Nevertheless, that corporate, if incorporeal, ^Bononitas^ represented, like the angels, species and individuation at the same time.[66]
It might be mentioned parenthetically that the personifications of communities, cities, and kingdoms created by juristic speculation were not simply a revival of those toponymic personifications of classical Antiquity which had lingered on in the miniatures of Carolingian, Ottonian, and even later manuscripts.[67] In fact, the juristic personifications of cities and countries were not at all identical with their august predecessors of classical cults. The classical city goddesses, adorned with mural crown or halo, still belonged, in a broad sense, to the stratum of ancient anthtopomorphism: they were the ^genius^ of a city and they could claim immortality and perpetuality simply because they were goddesses. The personifications of the jurists, however, were philosophical fictions belonging to the realm of speculation. The cities, instead of receiving, like Antique city goddesses at their epiphanies, a visible body, were actually deprived of their visible body and were granted by legal thought only an invisible one. This invisible body, to be sure, was immortal and perpetual; yet it was immortal, not because it was the body of a goddess, but precisely because it was invisible--the body of an immaterial being. Hence the lawyers were far from reviving classical "anthropomorphic" personifications; they created instead, in full agreement with the mediaeval scheme of thinking, what may be called "angelomorphic" personifications. In other words, legal corporations compared structurally with Christian angels rather than with pagan goddesses.
In his gloss on the Peace of Constance, Baldus called a city "something universal that cannot perish by death," and he compared that "universal" with the genius or species of man which does not die either.[68] It is possible that the term "something universal" (^quoddam universale^) evoked associations with the likewise immortal Unversals of philosophic speech; but what the term ^universale^ really meant in legal language was quite unambiguous: it was synonymous with the technical term ^univeritas^ deriving from Roman Law, the corporational collective at large which the early glossators defined as "a conjunct or collection in one body of a plurality of persons."[69] On that basis, Bartolus could maintain that "the whole world is some kind of ^universitas," not to mention kingdoms and cities.[70] Baldus could define a ^populus^ as "a collection of men in one mystical body,"[71] or call a ^regnum^ "something total which both in persons and things contains its parts integrally,"[72] or talk briefly about "some universal person."[73] For to interpret a collective bluntly as a "person" was suggested by Roman Law itsel, which, in the frequently quoted ^lex mortuo(D.46, I, 22), called a municipality, law court, or guild--under certain confitions even an inheritance--"a person."[74]
Underlying general idea was hardly different when Andreas of Isernia compared the ^patria^ to an ecclesiastical ^collegium^.[75] For even before the civilians made their deductions and personified the ^universitas^, the canonists had applied the legal notion of ^universitas^ to the various ecclesiastical ^collegia^--chapters, congregations, and other--as well as to the whole Church. Being the ^universitas fidelium^ according to oldest definitions, the universal Church was also legally ^universitas^ without restriction; and through the fusion with the organological concept of ^corpus mysticum^ on the one hand, and the anthropomorphic designations of the Church as ^mater^ or ^sponsa^ on the other, the temptation to personify the ecclesiastical collective also juristically may have been present at an early date.[76] In any event, the general tendency to treat the various ecclesiastical ^collegia^ as though they were real persons who could be punished and excommunicated must have been far advanced when Innocent IV found it necessary to define unambiguously the character of those collective "persons." At the council of Lyon, in 1245, he forbade the excommunication of an ^universitas^ or ^collegium^, and later interpreted his action and justified it on the grounds that ^universitates^ such as a chapter, a people, a tribe, were "names of Law" only and not of persons, and that names cannot be subject to excommunication. He pointed ...... .......
It was a simple application to the future of the customary doctrine of "identity despite changes," which more often referred to the past; and the later jurists argued accordingly:
The ^universitas^ is the same today which it will be a hundred years hence... If, therefore, we would say that an ^universitas^ can fall delinquent, the children, infants, women, and their likes would be included, which would be absurd; and for these reasons Innocent concluded that an ^universitas^ cannot be excommunicated.[83?]
The implications are obvious: the ^universitas^ thrives on succession; it is defined by the successiveness of its members; and owing to its successive self-regeneration the ^universitas^ does not die and is perpetual...except by way of substitution."[84]
On a far broader scale, and in a completely different connection, Thomas Aquinas came to define the problem of successiveness within the ^corpus mysticum^. He started by distinguishing between the mystical body of Christ and man's natural body. In the human body, says Aquinas, the members are present. "all at once" whereas to the mystical body the limbs accrue gradually in permanent succession "from the beginning of the world [Adam, of course, belonged to the ecclesiastical ^corpus mysticum^] till the end of the world." Therefore that mystical body embraces not only those actually in the fold but also those who potentially might join the fold now or in the future--that is, it extends to both the as yet unborn future generations of Christians and the as yet unbaptized pegans, Jews, or Mohammedans, since the mystical body of Christ, that is, the Church, grows not only by nature but also by grace.[85] What Aquinas said was certainly not new; but his neat ...... ......
It is true, of course, that minor communities could not claim--like the ^corpus mysticum^ of the universal Church--their identidy ever since the creation of the world; but they could claim their identity within Time ever since their own creation or foundation, and thence onward to the end of the world or any other practically unlimited time. Baldus, for example, styled the Roman Empire "that great ^universitas^ which encompasses in itself all the faithful of the empire both of the present age and of successive posterity," and of course he included implicitly also the past.[91] The empire, perhaps, could claim like the Church a universality also regarding Space: "... that every soul be subjected to the Roman Price," as Emperor Henry VII proclaimed.[92] But the universality of the minor corporate bodies was restricted to the universality of Time, as far back as it went in each individual case.
In other words, the essential feature of all corporate bodies was not that they were "a plurality of persons collected in one body" at the present moment, but that they were that "plurality" in succession, braced by Time and through the medium of Time. It would be wrong, therefore, to consider the corporational ^universitas^ merely as the ^simul cohabitantes^, those living together at the same moment;[93] for they would resemble, in Aquinas' language, only the physical body of man whose members were present "all at once," but they would not form the genuine ^corpus mysticum^ such as Aquinas defined it. The plurality in succession, therefore, or the plurality in Time was the essential factor knitting the ^universitas^ into continuity and making it immortal.
..... ..... one instead of many members--a mystical person by perpetual devolution whose moral and temporary incumbent was of relatively minor importance as compared to the immortal body corporate by succession which he represented.[97]
This curious concept solved, as it were, the difficult problem of the perpetuity of the "head" of the body politic. It is on that basis and with that corporational plurality by succession in mind that we have to approach the problem of the King "who never dies."
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[75] ... Although Andreas of Isernia admits that ^patria^ is nothing but the human beings acting in it, he nevertheless defends the corporate character of ^patria^ and its citizens, and fights against the atomization of this body; ...
[97] This is not identical with the one-man corporation achieved "by devolution," that is, when all members but one have passed away; see above n.75, and Gierke, as quoted in the preceding note....
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