Descrizione
Summary
1. The origin of the notion. 2. “Munus” and “Officium”. 3. “Munus” and “potestas”. 4. There is no “potestas” without “munus” (anymore).
Sommario
1. L’origine della nozione. 2. “Munus” e “Officium”. 3. “Munus” e “potestas”. 4. Non c’è (più) “potestas” senza “munus”.
1. The origin of the notion
As in every legal analysis, even in examining the notion of “munus” and that of (ecclesiastical) “potestas” we cannot avoid a previous explanation of the specific meaning and of the possible application of the subject matter. So that, we have to put the institutions summarized by these notions in the light of the historical development that determined, favored and sometimes conditioned their use in the legal field1.
This preliminary analysis, inherently implied in legal method (for which it represents the unavoidable theoretical premise and the condition itself of every practical discourse2), is still more necessary for the evaluation of notions and concepts that Canon Law inherited directly from Roman Law. Actually, it is impossible to forget the influence of Roman Law on ecclesiastical Institutions, when they first appeared and consolidated (in the central centuries of the Roman Empire, et pour cause), and on the studies of medieval lawyers, who invented and shaped Canon Law in the age of (re)discovery and diffusion of the Roman inheritance. Therefore, we have to define properly the historical value of the notions of “munus” and “potestas” in Roman Law, before trying to evaluate their current meaning.
Generally, the term “potestas” indicates the supremacy of a person over others, both in Private and in Public Law3. The attempts to explain the original meaning of the term in Roman Law have been many, and they were often reciprocally conflicting.
There is a first, classical vision, according to which “potestas” is a large and generic notion; and another one, more precise from a historical point of view, but not so different in its practical results. According to this second perspective, “potestas” acquired a specific legal meaning only in a later age, whereas earlier it was related rather to “power” in a larger sense4. The ambiguity of the sources seems indeed to confirm this interpretation, because the term is used to designate «qualsiasi posizione di predominio di un cittadino in relazione ad una funzione pubblica da lui svolta.»5
Actually, in order to give a complete definition of “potestas” we have to show its constant relation (not an opposition, indeed; but surely an implicit confrontation) with the concept of “auctoritas”.
This notion, typical of Roman Law (there is no equivalent in Greek6), was so important in the social life of ancient Rome that it was an essential characteristic of its political structure. From its etymological connection with the verb augere (auctor is qui auget), it derives a fundamental content of confirmation, ratification by a superior and qualified organ or person, which gives «all’atto che si tratta di compiere una garanzia (auctoritas) di legittimità, di efficacia o di semplice opportunità.»
The difference between “potestas” and “auctoritas” was clear. The first one was a legal power, linked to an Office or political function; the other one was a sort of preeminence, whose content was not so exactly defined, based on the social acknowledgement of a greater capacity of a person in respect to another8.
In Roman Law, the term “munus” has not a technical meaning in the legal sources of the last Republican Age. The theoretical elaboration of the notion started between the first and the second century AD and was completed by the jurists of the Severian Age9, «che sottolineano quei caratteri di onerosità ed obbligatorietà giuridica, in cui la dottrina moderna ravvisa ancora il paradigma del munus.»10 On the contrary, the original notion implied the typical characteristics of a free office, and a well-known definition (that of Verrius Flaccus, in its De verborum significatione11) established a connection between the two meanings: «Munus significat Officium cum dicitur quis munere fungi; item donum quod Officii causa datur.»12
That “ethical necessity”, indeed, was not necessarily implied by the notion of “munus”, because the term had a merely objective value, linked to the practical aspect of the office to which it was associated.
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Recensioni
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