FURTHER DISPELLING OF THE KINGSHIP MYTH
PART 3: 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.
We saw in the last post Fritz Kern’s refutations of what I called the American myth, this idea that king = monarchy = dictator/tyrant. On the contrary, as Kern demonstrated, for centuries customary law constrained the power of the king, keeping him under the auspices of the traditional fetters of the medieval constitution. And while it might be protested that such fetters were formal in nature, Kern also demonstrated such restraint was very practically enforced by both the church and the nobility. Kern though didn’t address other agents that enforced constraints upon the king. In this follow-up to the most recent post, we want to unpack those.
Though the primary focus in this installment will be the guilds and free towns, it's of note that even the lowly peasants played a role in constraining kingly power, and enforcing the medieval constitution. As Cohn observes, between 1200 and 1425, there were well over a thousand, largely peasant, revolts in Europe. Having analyzed the descriptions or texts of their demands, he concluded that these revolts should be understood as instruments of negotiation with the king, drawing attention to what I've described in this series as violations of the medieval constitution and entraining a remedy which returned to the conditions of the customary law.1
This overlooking of the role of the peasants, though was not the lone lacuna in Kern’s treatment. He also passed over the constraints enforced by the towns, and through them the guilds, upon the kingly power. Kerns has nearly nothing to say on this set of kingly constraints, but they were not insignificant, and in some cases decisive in determining the specific direction of history, so we should not overlook them.
As might be expected, given what we saw of how guilds operated within the German hometowns, in Mack Walker’s book (see here), a similar dynamic is usually found within the medieval constitution’s grounding of guilds within the towns. Though, it is true that this covers a lot of time and places, and in some there were more contention than Walker found between the interests of the guilds and towns within which they were anchored. Still, the guilds constituted a pillar of medieval legal pluralism, even if their resistance was more often expressed through the towns of which they were an essential (and usually organic) part.
To get a better idea of the guilds within this medieval legal pluralism, we can turn to the fascinating book by G.R.S. Taylor, The Guild Society, originally published in 1919.2 Taylor’s book incidentally is a great read, full of all manner of poetic and often funny verbal smacking of those he considers unserious scholars on his topic. I’ll only be able to provide a faint impression of this effect.
At the risk of repetition, we note that Taylor begins his treatise on guild governance with a review of key points we’ve also met through Kern, and earlier, and that will be reiterated and expanded in future installments to this series. These include the central importance of customary law within the medieval constitution, and the constraints imposed upon kingly power by the legal and political pluralism founded on that constitution:
The compelling force of the Middle Ages was not law, but custom.
…the historical fact [is] that common men rarely ask for anything new in their social structure. They have a stubborn belief that the old ways are better.
…it was in those days which we now collect together under the name of the “Middle Ages” that the guilds reached their prime. During the thirteenth and fourteenth centuries the guilds ranked in Western Europe with the barons and the kings, as the dominant factors in the social structure of their period.
But he soon after qualifies this last statement:
It was written above that the guilds ranked with the kings and the barons as the foundation of medieval society. But strictly speaking the king, although the centre of the picture, was less important in detail than the other two; and by understanding why we shall understand also that main principle of medievalism – local independence – on which the guilds themselves depended, and must always depend – for it is the root principle of their existence.
The government of the Middle Ages, such as it existed at all, was almost purely local.
And Taylor spends a good deal of space elaborating the details, implications, and virtues of the guilds local legal and political autonomy within their medieval towns:
When we understand a little of what the Middle Ages were, then we may know what the guilds meant in a social system which they did so much to build.
For the very heart of [the medieval system] was that the people had to an extraordinary degree the liberty to make their own law and order. That is a historical fact, which some people imagine a mere light-hearted paradox – but that is because they know very little about history.
…government was accomplished by manorial courts, and burgesses of the towns; abbots in their monasteries, and barons in their castles, were the factors of public life with which they reckoned in those days, in a much deeper sense than they reckoned with the king. Kent did not much mind what they were doing in Warwickshire, and would certainly have resented it keenly if Warwickshire men had been too inquisitive about Kent.
In earlier days, even the murder of one’s neighbour to a large extent was private business, which mainly concerned the two families of the victor and the victim. Such public business as there was had rather the air of the parish council than of the more pompous Houses of Parliament; it was a question for a guild regulation, a municipal or manorial custom. They never discussed the best method of conquering the other ends of the earth, and rarely even discussed a constitution for their own country. Government dealt with homely facts, not with faraway theories.
In medieval days government was, in the main, the laws of town council and guild. It was a matter of the serious practical affairs of everyday life – not the discussion of vague sentimentalities, which newspaper editors now call “politics.” And of this very practical businesslike medieval society, the guilds were the most substantial foundation – while the kings and their parliaments were the gay flags and gilded weathercocks which gave colour and sparkle to the show – and have confused the childlike minds of the orthodox historical dons ever since.
In an age when government was both local and economic, instead of centralized and political – that is, when the town or village mainly ruled itself, and when its “laws” were the rules of everyday business affairs – then the guild, being the collective assembly of the local wisdom and business experience, naturally took a foremost place in public life.
As Taylor sketches the story, this medieval constitution was a world apart from the aspirations of kingly power, and indeed the eventual triumph of the sovereign monarch (and eventual modern state) stood in stark contrast to the world of legal pluralism (from which Taylor clearly believes we must learn lessons for the future). Through the guildman's mind, he says, the medieval king was:
…a faraway creature whose main function was to lead the nation in war and defend it from attack. It was certainly not his function to interfere as a legislator or judge in their private affairs, which they felt quite capable of managing themselves. Parliament, insofar as it was a fact at all, they regarded as a body of representatives sent to Westminster to make as good a bargain as possible in the matter of taxation; and then return home again as quickly as possible and get to their honest work. Scarcely anyone would have thought of Parliament as an institution to make “laws.”
The king and his law are almost modern ideas, and certainly as we know them both today, would have been entirely beyond the conception of a medieval mind.
Instead of electing delegates to make laws at Westminster, the people of the Middle Ages were their own legislators at home.
Parliaments began because the Crown had, in some way or another, to persuade the people to be taxed. It was only as an after-thought that the members of the House of Commons thought that, if they had to pay, it would be as well to get something in return. So they asked for laws – not laws to tell the people what they must do, but mainly to tell the king what he must not do. However, the kings also saw their chance, and they soon invented the autocratic, compelling “law” which we know today. But that was not an idea of the Middle Ages…
In his impressively meticulous history of the guilds, which I’ll explore in much greater detail in future installments to this series, Anthony Black too emphasizes the situating of the guilds within a medieval context of political and legal pluralism, including the possession of their own courts.3 And he also notes the threat they were perceived as posing to other medieval authorities, including any aspiring state:
Rules stipulating maximum hours and so on comprised a large part of guild regulations, and it was with the enforcement of such rules, together with the maintenance of standards, that guild courts were primarily concerned.
These social guilds provoked the opposition of lords and bishops, of the Lombard kings and Carolingian emperors: they were accused of orgiastic rites, drunkenness and lasciviousness. Their rites were suspect to the church, their secrecy to lay rulers too. They made claims, quasi-legal in character, which were bound to stand in the way of feudal lordship and any would-be state. The mutual oath made them appear dangerous; as Cicero and Caesar had banned the Roman collegia as politically subversive, so medieval rulers from time to time charged guilds with the crime of sworn conspiracy
An interesting wrinkle in this story, supported by Black with massive documentation, is that despite the rise of Roman Law by the second millennium, which is widely acknowledged to have rationalized and legitimized the role of the sovereign state, even late medieval jurists to a remarkable degree found a series of loopholes to authorize the legality of the guilds’ self-organization and self-governance. Black makes this case particularly dramatically in the instance of Pope Innocent IV’s defense of such rights of the guilds. Given the prestige of his office, and pointing out that Innocent “wrote this at the very time when craft-guilds were multiplying all over Europe, and on the eve of their rise to political power within certain cities,” Black concludes that Innocent’s “commentaries provided a Magna Carta for the guilds.”
This is an especially fascinating observation as it further complicates the legal pluralism of the medieval constitution. Here we see the church indirectly restraining kingly power by providing legal cover for common authorities which themselves challenged kingly authority. These, again, are topics we’ll be able to more thoroughly flesh out in future series installments dedicated to the guilds generally, and Black’s history specifically.
But whatever threat of resistance or restraint the guilds posed to kingly power, such threats were most effectively exercised through the towns of which they were a core aspect. And, as Black illustrates, in some cases – e.g., in Flanders, Germany, and Italy – guilds achieved their place in towns, where the patrician class had managed to wrestle power from the assembly, through force of arms. Thereby, to a large extent, the towns became the political instruments of the increasingly powerful guilds. So, to conclude this installment, we look to the role of those towns in the medieval constitution.
Before situating those towns within the context of the medieval constitution’s legal pluralism, some description of what we’re discussing might be helpful. Here I’ll cite some quotations from the second chapter of Martin van Creveld’s book, The Rise and Decline of the State4, structured as a series of sections on who the state had to conquer to achieve sovereignty. Following sections on the church and nobility, his section on “the towns” includes the following observations:
By 1340, just before the towns were decimated by the Black Death, it is believed that approximately one-tenth of the entire population of Western Europe – estimated as 60 million – lived in hundreds upon hundreds of towns, albeit, for our calculations to reach such a figure, any settlement with more than 5,000 inhabitants has to be included in the list.
From the beginning towns were corporate bodies. Whatever the extent of their privileges and the way in which they were gained, these were granted not to individuals but to all citizens who, being sharply differentiated from the rural population, possessed ‘‘free’’ – that is, nonservile – status.
The rights of the towns, he observes, were deeply rooted in the medieval constitution’s long tradition of legal pluralism.
…towns had their own organs of government. This included one or more elected chief magistrates known under a variety of titles: echevins (France and the Netherlands), consules (Italy), Schöffen (Germany), and regidores (Spain). In addition, towns had a variety of other officials and a municipal council, both of them also elected; a separate system of municipal dues; the right to make their own assessments for the purpose of collecting royal taxes; and sometimes, by way of an institution that was both profitable and symbolic, a mint as well.
The rise of the medieval towns had largely been the product of manufacture and trade. This foundation both provided political and legal strength of the town against both king and nobility, while the trade routes entailed in the making of that foundation also served as lines of collaborative resistance in defending such rights, manifesting as a kind of medieval municipal federalism.5
…the influence of the towns was not purely local but supplemented by the connections that they maintained with each other across territorial borders. Trading relations represented one foundation on which such connections could be built; another was the commonality of institutions, given that newly established towns were often given, or else took for themselves, the laws and political organization of existing ones and were sensitive to any attempt to take them away. Whatever the basis for their feelings of solidarity, they often formed alliances or leagues aimed at securing the roads, maintaining the peace, and defending their interests in regard to freedom from tolls and the like.
The most famous associations were those of northern Italy on the one hand and of Germany on the other. The former were created as early as the twelfth century.
The most famous such confederation in Italy was the Lombard League, which at its height included most of North Italy’s cities.
The [German municipal federations] included the Rhineland League, the Swabian League, the Alliance of Heidelberg, and of course the Hansa. The last-named peaked during the fourteenth and fifteenth centuries when it held regular congresses and, thanks to its economic and naval power, was able to interact on equal terms with kings and Emperors. At that time it united some 100 trading towns scattered from the northern Netherlands all the way to the eastern Baltic.
These federal and economic foundations provided the means for the towns to defend their interests against ambitious kings:
…the demands most frequently raised were for self-government on the one hand and immunity to various forms of taxation on the other.
To one extent or another this organization and these forces – backed by wealth derived from trade and manufacturing – enabled [towns] to assert their independence both against their original founders and against the higher authority represented by the king; this capability often extended to the point of declaring and waging open war.
The most famous example of towns waging war against royalty to defend their freedoms was the Lombard League’s long, eventual military victory over the then ambitious Holy Roman Empire, coming to a culmination in the battle at Legnano, in 1176. However, Creveld notes that the ability of towns to exercise a powerful constraint on the kingly power was still evident as late as mid-17th century England:
Most historians agree that the revolt against Charles I was initiated by the gentry, landed property-owners who made up no less than three-quarters of the House of Commons. Still, it was the towns, with London at their head, that provided the financial muscle as well as the appropriate ideology in the form of Puritanism. The towns’ readiness to involve themselves in the war meant that it was fought on a far larger scale, and wrought much more destruction, than any of its predecessors…
So, while conventional scholarship tends to emphasis the nobility and church as the primary constraints upon kingly power, it would be a mistake to underestimate the importance of the guilds and towns in this regard.
Eventually, of course, though, as those of us who understand the dynamics of the phenotype wars expect, this legal pluralist world of the medieval constitution would give way to the modern world, or what we would call the growing spatialist hegemony. And in his discussion of the guilds and towns, Taylor laments those legal developments:
Slowly the central powers built up a governing hierarchy of their own: the sheriffs, the justices of the King’s Court, the lord-lieutenants of the counties, gradually sucked the power from the local assemblies and held it in the hands of the councils and officers of the Crown. But when that was accomplished, the Middle Ages were no more; the modern system had begun.
Whereas the medieval system was based on local production and local customs, and its civic organs were local and economic and democratic, the modern age is centralized, political and autocratic.
There are few with sufficient intellectual nerve to deny that the medieval constitution produced a very great architecture, sculpture, painting, literature, and philosophy of life, against which the products of modern society seem too often the refuse of a rummage sale.
The purpose here of course though was not to lament the age of the spatials, though I appreciate that most of my readers likely regard the current arc in the phenotype wars in such a manner. As I’ve argued in my book, though, the cosmic fairness – if there be such a thing – in the phenotype wars is that across its spirals each phenotype gets its era to bask in the sun. The point of these first couple installments has been rather to remind us that – contrary to the spatialist mythology, so popular in and widely disseminated from America – the story of modernity has not been one of liberal (even revolutionary) liberation from the dictatorship or tyranny of ancient monarchy. Nor was it any ancient appeal to the divine right of kings that eventually gave rise to the sovereign state: initially monarchal, later secular, democratic, and republican.
Rather, it was the adoption of Roman Law, with its imperative that no corporation stand between the sovereign and its subjects/people/citizens, that destroyed the legal and political pluralism with which the medieval constitution had constrained the sovereign and protected the liberty of the people. Through the radical deracination of people into monadic, atomized individuals, the psychological imperative of mass society has empowered the monist, sovereign state, which has all too often manifested as the very dictatorship and tyranny that spatialist ideology would have us project upon the medieval constitution.
In reality though it was the rich legal pluralism of the medieval constitution which for a thousand years restrained the absolutist ambitions of aspiring monarchs. And if today’s temporals are indeed to recover something of the lost world of temporalist hegemony, toward rebuilding the communities, traditions, and institutions that may yet provide a cushion for a softer landing amid the phenotype arc that lays ahead, there may be no better place to start such a reclamation than with a consideration of the lessons of legal pluralism.
That’s what this most ambitious series will be all about. Now that, I hope, we’ve put to rest this American modernist mythology of king as intrinsic tyrant, we can move into the future installments of this series with a clearer mind about both what is possible and what is at stake.
So, if you want to be on top of all those future installments of this exciting new series, and haven’t yet, please…
And if you know of someone else who’d be interested in this topic, please…
Meanwhile: be seeing you!
Samuel K Cohn Jr, Lust for Liberty: The Politics of Social Revolt in Medieval Europe, 1200–1425 (Cambridge, Mass.: Harvard University Press, 2008).
George Robert Stirling Taylor, The Guild State, Its Principles and Possibilities (Norfolk, VA: IHS Press, 2006). Taylor’s book is not a proper history, and he is mostly summarizing the historical literature. His pithiness though proved irresistible for purposes here. I assure the reader that there will be further installments to this series, on the guilds as an expression of legal pluralism, based upon the extremely rigorous historical analysis of Anthony Black, who’ll only get passing reference in this installment.
Antony Black, Guilds and Civil Society in European Political Thought from the Twelfth Century to the Present (Ithaca, NY: Cornell University Press, 1984).
Martin Van Creveld, The Rise and Decline of the State (Cambridge England ; New York: Cambridge University Press, 1999).
Back in a former life, I had a great deal to say about the idea of recovering something of such a municipal federalism for the modern day. For anyone interested in those dusty old writings: Mike McConkey, “Beyond the Crises: Proposal for a New Confederation,” in Political Arrangements: Power and the City, ed. H. Lustiger-Thaler (Montreal: Black Rose, 1992); Mike McConkey, “Toronto’s Neighbourhood Association Movement, In Light of the Artificial Negativity Thesis,” in Culture and Social Change, ed. C Leys and M Mendell (Montreal: Black Rose, 1992); Mike McConkey, “Whither the Municipality? Defining the Municipal in Confederal Municipalism,” Anarchist Studies 2, no. 1 (Spring 1994).