Exploring the Roots of the Crisis of the Modern State. A View from Roman Law

Abstract

Contrary to what may appear at first glance, classical Roman law provides today’s legal and political thought with relevant tools to address the current crisis of the state. This was the understanding of Álvaro d’Ors, an eminent Spanish scholar of Roman Law during his long academic career. Starting from the distinction between auctoritas and potestas as it prevailed in classical Rome, he explained the effects that their later entanglement provoked in socio-political life.

Indeed, auctoritas and potestas should never be embodied by the same person or united in a single role. Thus, while right (ius) must be guided by the former (the judges’ knowledge, socially recognized), without pressure or political interests, the political government acts on the basis of potestas, i.e. a socially recognized power.

The distinction between power and authority was lost over time, with serious consequences for the legal tradition. In the absence of the original sense of authority, right came to be considered as consisting only of lex (with no place for ius, i.e., for a right based on auctoritas, on knowledge). Moreover, it is a lex established according to principles of justice decided by the potestas of the legislator, leaving the judges with the mere task of “fitting” the legal conflict to the appropriate legal norm.

Faced with this situation, d’Ors advocated the need to reestablish a “case-based” right in which the prudentia auctoritatis of judges would resolve conflicts without reducing ius to lex.