PAPAL ARBITRATION

International arbitration, of which papal arbitration is an aspect, evoked a vast literature between 1870 and 1920. These writings mirrored quite perfectly the assumption of civilized society that rational juridical forms might be substituted for irrational military methods to resolve conflicting claims of sovereign states. Since 1929 and the abandonment of the assumption that ratio can control vis, arbitration as a juridical form has its greatest utility in cases of private law and labor negotiations and is scarcely noticed in international legal literature save in its historical aspects. Arbitration, a method of adjudication developed in classical Greece and refined by Roman usage and jurisprudence, depends on several assumptions common to the contenders and the arbitrator. Some of these assumptions are good faith, equality, and a belief in some kind of punitive sanction. The contenders assume, first, that the losses incurred in arbitration are substantially less than would occur were they to resort to a trial of strength and, second, that the arbitrator is as much concerned with equity, as they understand the term, as are they themselves.

Medieval Development. Papal arbitration was one aspect of that subtle process by which the Roman Catholic Church in the West became in the Middle Ages the veritable heir of the Roman Empire. The process had already begun in the NT period, when Church members were exhorted to settle their differences without recourse to pagan courts (1 Cor 6.1–9). Among the privileges extended to bishops by the Constantinian peace was imperial recognition (Codex Theodosianus, ed. T. Mommsen and P. Meyer, 2 v. in 3 [Berlin 1905] 1:27.1) of the validity of decisions rendered by the bishop in his capacity either of iudex (judge) or arbiter (arbitrator), and the obligation of the state to enforce the decisions rendered by an ecclesiastical person. As the internal cohesion of the Empire dissolved especially in the 5th and 6th centuries, not only did all bishops assume greater administrative and judicial responsibility, but the bishops of the patriarchical sees, except Constantinople, became shadowy proconsuls.

From the time of the Lombard invasions into Italy, the bishops of Rome became steadily the sole Roman, political, and judicial power of the West. After freeing itself first from Byzantine and, later, Carolingian domination, the papacy of the 11th century rose to a position of leadership based solidly on written law in contrast with Germanic contention for headship based on custom of relatively brief duration. The great popes of the 12th and 13th centuries, many of them former professors of law— both Canon and Roman—appointed Roman law forms of arbitration for many classes of difficulties arising between two juridical persons. "It is in the collection of gregory ix (1234) that one must seek out the Canon Law doctrine on arbitration and its codification. This doctrine is taken from Roman law, which it reproduced almost completely and without change, except in those areas peculiarly inspired by Christian ideas or which the dictates of practice necessitated. The doctrine remained without notable change up to the Code of Canon Law of 1917" (Amanieu).

However, as the feudal monarchs of the 13th century developed greater awareness of their own juridical personalities (Rex est imperator in regno suo ), the popes, who became more deeply involved in European power politics and were recognized for this reason to be of the same power stature as the secular monarchs, were more and more often called upon to act as arbitrators. boniface viii arbitrating the dispute between King philip iv the Fair and edward i of England (1297); alexander vi, between Portugal and Spain (1493); and gregory xiii, between Poland and Russia (1572–83), exemplified successful papal adjudication of international disputes. Whereas textbooks often refer to popes as arbitrators, they seldom note that the Holy See itself not infrequently employed the method of arbitration to resolve its own political differences with Italian states and combinations of states, a fact that underscores the grave responsibilities which devolved on the pope as a territorial sovereign.

Modern Era. The religious and political upheavals of the 16th and 17th centuries diminished the possibility of arbitration but by no means ended the need for it. With J. bodin's definition of sovereignty and the growth of the modern state with its large and absolute authority, the peacelovers of the civilized nations began to seek juridical mechanisms for the promotion of peace; and in the early writers, such as Hugo grotius, one finds recourse to the Roman law doctrine of arbitration. The congress system of making and maintaining peace, begun in the 18th century and developed in the years that followed, recognized arbitration and finally set up at The Hague a panel of jurists to be employed for arbitration of disputed claims. But only rarely did secular rulers employ the good offices of the Holy See in arbitration. In 1885 Pope leo xiii was selected to arbitrate the claims of the German Empire and Spain in the Caroline Islands. The overtures of benedict xv (July 28, 1915, and especially Aug. 1, 1917) to serve as mediator between the belligerents in World War I met with no success. More cautiously, pius xii fashioned his public reactions during World War II to the prospective role of peacemaker—to which, however, he was not invited. In his first encyclical, ecclesiam suam, paul vi, by offering his services in the cause of peace, maintained the traditional attitude of the papacy toward international arbitration.

It may be concluded that the prevailing ethical standard of European society has been gauged by its view of papal arbitration. The Church preserved the Roman law of arbitration and the great legist popes of the Middle Ages disseminated that equitable form. Since secular governments began to replace Romano-canonical methods, they have sought, particularly from the 17th century, to devise universally acceptable systems of arbitration. But lacking a common ethic and a common religious orientation, modern nations can act in concert only ad hoc and on the basis of the balance of power, best described by St. Augustine as a latrocinium, or robbers' treaty.

Bibliography: j. h. ralston, International Arbitration from Athens to Locarno (Palo Alto 1929). j. eppstein, The Catholic Tradition of the Law of Nations (London 1935). a. amanieu, Dictionnaire de droit canonique, ed. r. naz, 7 v. (Paris 1935–65) 1:862–895. g. balladore pallieri and g. vismara, Acta pontificia juris gentium (Milan 1946). c. pharr et al., eds. and trs., The Theodosian Code and Novels (Princeton 1952). a. berger, Encyclopedic Dictionary of Roman Law (Transactions of the American Philosophical Society NS 43.2; Philadelphia 1953).

[s. williams]