Lex animata is a 12th century Latin translation of the Greco-Roman concept νόμος ἔμψυχος, nómos émpsychos, which equates to the "living law".
Originating in Hellenistic philosophy and repurposed by Themistius in the 4th century, the identification of the Roman sovereign as nomos empsychos was established in law by the emperor Justinian I in his Novellae Constitutiones, and introduced into European civil law through the discovery of The Authenticum by the medieval glossators in Bologna.
It would be a concept that would influence medieval ideas and shape early modern political thought about the state.
The concept of nomos empsychos is typically considered to have originated in a Hellenistic theory of kingship, which developed after Alexander the Great in the 3rd–2nd centuries BC and drew on the Platonic idea of the philosopher acting as founding lawgiver to the politeia.[1][2] Aristotle, in his Nicomachean Ethics (mid-4th century BC), already describes the ideal judge as "living justice" (δίκαιον ἔμψυχον, díkaion émpsychon).[3]
The first surviving use of the form nomos empsychos, however, is found in a pseudo-Pythagorean work, attributed to Archytas but probably dated after 50 BC.[4][5] Themistius however, was the first to use it to describe the emperors supremacy over the law, using it to describe Emperors Jovian (r. 363–364), Valens (r. 364–378), and Theodosius (r. 379–395), and could be seen to be an expression of the imperial court's ideology.[6][7][8] It would later be codified by Justinan and rediscovered in western Europe with the Authenticum, with the Latin rendering of the concept as Lex Animata[9][10]. It would come to serve as one of the foundations of later civil law in the West.[11][12] The concept had gained wide currency by late antiquity.[4] Justinian's formulation, compiled by Tribonian,[11] runs:
The Emperor, however, is not subject to the rules which We have just formulated, for God has made the laws themselves subject to his control by giving him to men as an incarnate law [nomos empsychos]. (Novellae 105.2)[13]
In the Middle Ages, the glossators of the 12th and 13th centuries, notably Accursius, applied the concept of lex animata to the Holy Roman emperor.[14] Accursius rendered the principle in the Code of Justinian as princeps est lex animata in terris ("the prince is the law animate on earth"), and argued that all holders of ordinary jurisdiction over particular geographical areas derived their right from the emperor as living law.[15]
The term was also used of the pope by hierocratic writers,[16] and it was ultimately extended to individual kings, as the French jurist Barthélemy de Chasseneuz did in the case of the king of France in his 1529 Catalogus gloriae mundi.[17] The 14th century Italian jurist Baldus de Ubaldis wrote, "Rex est lex animata ... Ego dormio et cor meum, id est, Rex meus, vigilat" ("The king is the law animate ... I sleep and my heart, that is, my king, keeps watch"),[18] and in his 1598 The True Law of Free Monarchies, James VI of Scotland also referred to the concept when he affirmed "the old definition ... which makes the King to be a speaking law and the law a dumb King".[19]
The concept of the king as lex animata faced resistance in medieval English law, however. When Parliament ratified the deposition of Richard II in 1399, it listed as one reason the fact that Richard had believed "that the laws were in his own mouth".[20] Despite paralleling Byzantine political ideas in other respects, Islamic philosophy also departed from the notion of nomos empsychos by conceiving the caliphs as administering the sharia established by Muhammad rather than as lawgivers in their own right.[21] The idea of the lex animata was later deconstructed more systematically by Montesquieu and other constitutional thinkers of the Enlightenment, with Montesquieu pronouncing that iudex est lex loquens: "the judge", not the king, "is the law speaking", and the judge is not animate, but "inanimate", deriving rather than inventing the law.[22]
In historiography, it's used to distinguish emperors from the principate and the dominate.[23]
Along with the church's independence by Constantine, it would shape early modern political thought.[24][25][26] This includes the concepts of the sovereign, the judiciary, the state, the separation of powers, and likely permeated all ideas in the medieval and early modern political and legal thinking.[27]
According to Kenneth Dyson (2009, p. vii),[28]
"[t]he tradition to which it alludes emphasises the autonomy, distinctiveness and normative character of public power. It attributes action in the service of this power to a fictional person and deliberative agent – the state – in ways that recall Thomas Hobbes, Samuel Pufendorf, and Christian Wolff. The classic state tradition serves to depersonalise public power in a dual sense, seeing it as distinct from both ruler and ruled."
The idea of lex animata is sometimes used in modern political debate, usually to scorn an opponent for being too self-important or delusional about his insights into the law and constitutional affairs. In judicial circles it is sometimes used in jest, recognising a peer as an authority on the law in general.[citation needed]