Theological or Legal Fiction? Opposing conceptions of fiction in Ernst H. Kantorowicz and Yan Thomas

In his famous article on the Sovereignty of the artist, published in 1961, Ernst Kantorowicz saw in the attribution of extraordinary powers to the pope during the 13th century the origin of the radical emancipation of medieval thought from the domination of nature and divine will. The ability of “creating from nothing” assigned to the pope by canon law round 1220 and the comparison of this capacity to the instrument of legal fictions in Roman law, played, according to Kantorowicz, a decisive role in arriving at a new conception of creativity: a creativity finally free from the constraints in which medieval thought had confined it for centuries. At the conclusion of his work on fictio legis, in 1995, Yan Thomas criticised the main thesis of the article by Kantorowicz, considering his debt to canon law science to be excessive. In the view of Thomas, the fiction in Roman law, exhumed by civilists during the 13th and the 14th centuries, would have contributed to questioning Christian domination of nature of medieval thought to a far greater extent than the theological and canon law stimuli called into question by Kantorowicz. Almost thirty years after the words of Yan Thomas, and more than sixty after those of Ernst Kantorowicz, it seems interesting to return to this fascinating debate, which today can be partly renewed thanks to the results achieved by two lines of research that have prospered in recent decades: a historiographical one, which has deepened the relationship of Kantorowicz with political theology and the role of fiction within it; and a historical-legal research line on canon law sources, which allows a better understanding of the meaning of fiction in the thinking of medieval jurists of the 12th and early 13th century.