FROM MEDIEVAL CONSTITUTION TO MODERNITY

PART 9: LESSONS OF LEGAL PLURALISM

This post is part of a lengthy series exploring the world of legal pluralism, particularly (though not exclusively) as it was grounded in the world of the medieval constitution. For a full index of the installments so far, see the introductory post, here.

Last installment we saw how, despite their best efforts, the late medieval scholastics let the vampire through the doorway. Under pressure to adapt to changing material and social conditions, they had attempted to selectively adopt aspects of the Roman law which would allow them to maintain the hardnosed factuality, the reicentricism, of the medieval constitution. However, once Roman law had its foot in the proverbial door, the spatial revolution had been unleased.

The combination of the immediate self-interest of certain parties (e.g., princes and merchants), with the march of the phenotype wars toward increasing spatialism (e.g., freeing of markets from communal regulation), manifest in an ever more space biased society (e.g., mercantilist expansion of trade routes), fueled the momentum for an increasing enshrinement of Roman law. That momentum grew out of the logic of the spatial revolution, given Roman law’s legitimization of the centralist sovereignty, whose expansive powers were far more appealing to spatials than had been the modest localism and particularity of the medieval constitution’s legal pluralism. In this post, Grossi walks us through that transition, from legal pluralism to monism.

We start off with a reiteration of the core axioms of legal pluralism in the medieval constitution:

In any large commune of the thirteenth century, the civic laws, or statutes, were not the only source of legislation: there was also the canon law laid down by the Church; mercantile law set by the community of merchants; and feudal law produced by those of the feudal class. Each of these had its own specific rules governing specific subjects and people and adjudicated by specific tribunals. Finally, there was the ius commune – constructed from the interpretation of the ‘universal laws’ (Roman and canon) by the universal community of jurists. The civic political order was unitary, but within the city walls also dwelt plural, diverse legal orders which coexisted with one another and shared in the government of the city’s inhabitants.

Furthermore, this pluralism was expected to be considered in juridical practice:

The statuto is a complex of rules inscribed under the banner of the concrete, which services the needs arising in civic life; these documents limit themselves to clarifying that, in any matter, if there is a civic law dealing with the issue, the judge should apply that law, but, if there is a gap in the civic law, the judge should draw on the omnipresent and theoretically complete ius commune that needs no authorization to fill it.

In this integrated plurality of legal systems, ius commune and iura propria are examples of unitary legal orders that are not undermined by their proximity to power.

Grossi then spends some time parsing an area of the medieval constitution’s legal pluralism which we haven’t addressed at length yet, feudal law:

The status of feudatory, or vassal, meant formally that the individual belonged to another man, but often the so-called inferior was, in effect, able to exercise considerable autonomy of discretion.

There came about feudal territories which incorporated that mixture of public and private which is the primary feature of a feudal structure.

…because of its separation, this complicated but isolated web of people and goods soon brought about an even more complex network of customs. Because these customs were restricted to certain subjects and certain areas, they took on the features of an autonomous body of law which we might call feudal law.

This autonomy was entrenched by the creation of special tribunals to rule in the disputes regarding people from those lands or the lands themselves.

Feudal law as a special type of universal law came into close dialogue with the ius commune thanks to the legal pluralism of the late Middle Ages, with its legal universe that was, as we have seen, both unified and, at the same time, plural.

So feudal law too became another part of the rich tapestry of the medieval constitution’s legal pluralism. As we saw in the last installment, though, the initial fraying of this medieval legal pluralism is recognizable in the relative economic success of the era, with the expansion of trade and related mercantile activity. Just as seen with the rise of feudal law, mercantile and commercial law too began to take on a life of its own.

Merchants were a growing economic, social and political force in late medieval Europe, and with this new influence they gained the confidence to construct legal strategies to defend their interests. At its beginnings, commercial law consisted in nothing more than the customs of the mercantile class, whose members governed commercial dealings to their own satisfaction. These customs were born out of everyday practices – the dealings of the local market square made general by the now universal esteem in which the mercantile class was held. The customs were written down for the convenience of the users and became, by the middle of the thirteenth century, proper statutes of commercial law, reflective of the now fully realized power of the mercantile class.

Out of this emergent law also came new special mercantile tribunals and commercial courts:

…at first these [special tribunals] had only a limited field of professional and disciplinary activity, but they soon grew to encompass a proper jurisdiction equipped with its own set of rules.

Commercial courts were [eventually] able to rule on any aspect of commercial activity; they were presided over by unrobed judges, and followed procedures that were specifically designed for speed and efficiency. They would be long-lived and difficult to kill off: Italy’s tribunali di commercio were only abolished in 1888.

We saw in the last installment how closely connected the introduction of Roman law into the medieval world was with the new realities of that emergent mercantile world. However, Grossi argues that there were also other factors contributing to these developments: possibly undermining confidence in the medieval constitution. Regardless of whether they were fairly blamed on the medieval constitution, harsh conditions of life in the late medieval period, he argues, softened Europeans up for the changes in their legal order which radically reconstituted European societies.

We are accustomed to regarding the fourteenth century as the culmination of the medieval period…

… the fourteenth century is in fact a period of great disruption, especially if we look at things on a structural level: that of agriculture, nutrition, demography and health.

The fourteenth century saw ruinous wars, famines and epidemics, and the persistent, corrosive presence of hunger.

It is obvious that the collective consciousness began to doubt the load-bearing pillars of the old order, which appeared to be about to buckle. Both nature and culture seemed to have betrayed late medieval man by failing to guarantee his survival.

Amid this pincer movement of the emergent new mercantile economy and world, with the harsh life of deprivation and violence occasioned by the 14^th century, Europeans were widely prepared for change, even if it is unlikely that most of them appreciated the extent to which these radical changes would so thoroughly undermine the theological and philosophical foundations of their world. The result, Grossi describes as forming a completely new anthropology, compared to that of the Middle Ages. This new anthropology recentered the moral universe squarely on the individual.

This new heroic individual, though, can only be trusted to fulfil its great promise if it is freed from the medieval chains of pluralist associations and corporations. All the rich fabric of human association, which constituted society under the medieval constitution, buttressed by the legitimacy of that constitution’s legal pluralism, had to be dismantled if the heroic individual was to fulfil its promise in the new emergently modernist anthropology. Central to this new individualist anthropology was the concept of dominium – a notion, which, as we’ll see, has spatial bias (in the Innisian sense¹) built into its very logic.

The new anthropology that develops during the heady fourteenth century, and afterwards, is predicated on the universal applicability of the concept of dominium.

This right [of dominium] is characterized by a considerable capacity for expansion since the being that possesses it is entitled to assert itself over the cosmos and the surrounding culture. The will, in effect, becomes the essential character of the human subject, and the guarantor of each person’s liberty. This liberty is construed as dominium; the intersubjective realm is governed by a series of rights of property.

The law emerges into the sun only when problems on the social, economic and political surface become revolutions that reach down to the deepest, most radical level.

In Grossi’s lexicon, what distinguishes what I’d call temporal and spatial societies is an anthropological shift from one that is reicentric (thing centered) to one that is anthropocentric (human centered). This celebration of the human individual is of course characteristic of modernity, with its space biased, highly expansionist societies: an expansionism that is not merely geographical, but also institutional, social, and psychological. And this too of course is the path inexorably winding toward legal monism, the legal bulwark of centralist sovereignty.

…the reicentric anthropology of the Middle Ages had to be replaced by one that was anthropocentric, and this is what the voluntaristic currents in philosophy and theology began to propound in the fourteenth century. The law followed later, in perfect harmony, once it had absorbed and assimilated the results of these currents.

…that socio-political order which we call by its French name, Ancien Régime – that is the French state up to 1789 – retained many relics of medieval law, which intermingled with the increasing numbers of juridical innovations. A completely new legal order, however, only appears after the great revolution.

The defining characteristic of modernity can be seen in the desire to set up a new political system based not in the medieval preoccupations of nature and community – and the communitarian solutions that went with them – but rather in a vision of society as a collection of human individuals, whose freedom is recognized and respected. These individuals were free to dominate the realities of nature and of society, each of which gained a strongly felt psychological force.

…the new society focused on the physical subject, who was now psychologically liberated and no longer needed to cower under the covering of protective communitarian structures, which therefore began to feel smothering.

…the defining figure of modernity is the property owner.

…the more the state grew, the more society shrank.

But the result of this anthropocentric anthropology, this fixation on the radical, deracinated individual, as discussed at length in my recent book, A Plea for Time in the Phenotype Wars, is not (as the conceit of classical liberals and libertarians would have it) the antithesis of centralist sovereignty, but rather the condition of possibility for the consolidation of such sovereignty. Though, as Grossi observes, this condition only becomes decisive with the full out war against legal and institutional pluralism arising with the French Revolution. Its incremental growth can be charted across the latter medieval period.

In 1312, when Philip the Fair reformed the study of law at the University of Orléans, an institution already famous for its illustrious teachers, he was careful to specify that the Corpus iuris possessed authority within his realm only because it constituted a customary form of law allowed its force by the king.

…in 1454, Charles VII ordered a full written drafting of the oral customs. The resulting procedure consisted in a continual intervention by the central power. Formally the ‘constitutional’ basis of the customs remained untouched, but the monarchy achieved two goals that were of great importance in French legal history: they asserted a tight control over the customs and they began to bring some unity to the highly fragmented field of customary law.

Francis I’s ordinance of Viller-Cotterêts in 1539 reformed the legal system by ordering that all official legal acts, including compilations of coutumes, had to be written ‘in the French mother tongue and no other manner’. A specifically ‘French’ law now begins to appear, a linguistically autonomous, concrete entity that reflects the unity and independence of the French state.

Although the quantity of royal interventions in the legal sphere certainly grew, the legal pluralism of the Middle Ages remained and was eradicated only by the French Revolution.

The French Revolution, militant manifestation of the French Enlightenment, becomes the cudgel that spatialism comes to wield against those independent intermediary institutions which once embodied the political and legal pluralism which had animated the medieval constitution’s resistance to centralist sovereignty. A new era, often called modernity – the hegemony of spatialism – was thereby unleashed upon continental Europe.

Grossi does acknowledge that developments across the English Channel were not exactly identical to those on the continent and takes some time to address nuances in the English law context. In addition to whatever insolation might have been provided by the channel, the impact of the Norman conquest plays an important part in this parallel legal story. Perhaps, because of the sweeping institutional impacts of the conquest, Roman law claims Grossi never took root in the English context. However, at the same time, in the English context, customary law, as on the continent, proves ultimately unsustainable.

However, unlike on the continent, the development of common law (remember, meaning something quite different on the isles than on the continent) was leveraged to continue resisting and constraining kingly power and centralist sovereignty. Though, as we’ll eventually see, common law – given its propensity to legitimize the technocratic rule of the jurists – proved ultimately far less effective for maintaining legal pluralism than had customary law been able under the medieval constitution. Quoting Grossi at length:

Although William had sworn at his coronation to safeguard the observance of the existing laws, the new common law gradually replaced the old mass of customs on which local courts would draw. It achieved this not by the formal abrogation of the local customs, but because the greater efficiency of the royal courts which applied the new discipline meant that they became the preferred forums for obtaining justice, rather than their local counterparts.²

Centralized royal courts located in London are set up which immediately blend into the wider activities of government, all under the auspices of the king. What will come to be called the common law (not to be confused with the very separate continental tradition of ius commune, dealt with in the previous chapter) is the law common to all free men of the realm. It can have this status because it comes from king, insofar as his power is manifested through the law courts.

…because of the lawyers’ pragmatic focus and because of the technical understanding needed to craft the Crown’s legislation, this growing legal class became the technical means by which the developments in the common law were implemented – the indispensable mediators between the power of the Crown and its subjects.

The common law is singular in being a law whose authority originates from the king but which, from the second half of the thirteenth century onwards, is distinct from the king himself. Thus comes about what English-speakers now call the rule of law, implying the autonomy of the law but also the supremacy of the law over the niceties of politics and the subordination of the state itself to the law.

In England, the weakness of the central power means, amongst various ramifications, that political power and the law become riven from one another; there is therefore less of a tendency to produce law through legislation than in continental Europe.

Common law, in this instance, means law produced largely by jurists, by those who know the law well and who, in medieval England, tended to be practitioners, men trained in the schools of their own profession.

…it was not until the Labour government of Clement Attlee in 1945, which instituted a welfare state and with it the inevitable planning of economic and social relationships by central government, that we can truly see large-scale intervention by the political sphere in England.

So, the English law, too, experiences a process of gradual centralized sovereignty, though arguably much more gradual than on the continent, due largely to the fact, as Grossi says: “All attempts by Roman law to ‘invade’ the ‘island’ of English law [are] rebuffed decisively before they can take root…”

So, across this trajectory Grossi tells the story of the transition from legal pluralism to legal monism, eventually giving rise to centralist sovereignty. And while he acknowledges the vital role played in that process by the renaissance of Roman law, the latter can hardly be blamed entirely for the eclipse of the medieval constitution. For as he illustrates, in broad strokes, the same developments were evident in the context of English law despite the vastly diminished role of Roman law in that context. From this analysis of Grossi, it seems to me that the correct emphasis is less upon the function of Roman law, than upon the erosion and eclipse of customary law, with its emphasis upon local particularity.

While, on the continent at least, Roman law contributed to that erosion and eclipsing, he also shows that the European world was experiencing dramatic changes for which local customary law didn’t provide effective (because too gradualist) legal solutions. Read through the model of the phenotype wars, as I’ve developed it, Grossi’s historical claims could be stated as the fact that the gradual growth of prosperity across the long expanse of the medieval period gave rise to relaxed Darwinian conditions and a growing social niche for spatial phenotypes, which had not been present under the far harsher Darwinian conditions prevalent during the earlier medieval period. As such spatials gradually carved out a space for themselves, in the process they increasingly cemented the intellectual and philosophical legitimacy of the world to which they aspired. Eclipsing legal pluralism with legal monism was central to the establishment of their spatialist hegemony.

Without either my vocabulary or explicit use of my analytical model, that seems to me to be the story that Grossi is telling with his history of European law. In the next installment, we’ll follow Grossi further down this path, as he describes the consolidation of spatialist hegemony, with his discussion of the transition from humanism to natural law (and capitalism). So, if you’d like to be among the first to see that installment when it hits the press, and haven’t yet, please…

And if you know others who’d be interested in what we discuss around here, please…

Meanwhile: Be seeing you!

1. New readers, who do not know what I’m talking about here, are advised to read my recent book, A Plea for Time in the Phenotype Wars, where the relevance and details of Harold Innis’ dichotomy of space and time biased societies is explained and applied.

2. I’ll just mention in passing, here, that reading I’m currently doing for installments to this series on the history of the jury suggests that Grossi here may be overstating the Norman deterioration of local law – which was still deeply rooted in custom. Stay tuned for that.