GROSSI ON THE MEDIEVAL CONSTITUTION

PART 5: 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.

In the last installment to this series on the lessons of legal pluralism we met the influential and distinguished Italian jurist and historian of law Paulo Grossi. With this post we begin digging deeper into the details of his history of European law.¹ Grossi begins his story with the origins of the current manifestation of European law, in the medieval constitution.

This medieval constitution, he notes, arose from within the society of the fourth, and especially the fifth, centuries AD, which had the unique challenge of reestablishing law. This reorientation was required as a response to what he calls “the void generated by the collapse of the Roman political structure and of the culture that existed within that structure.” In the rubble of that collapse, European society faced entirely different challenges, including a radically different confrontation with nature. These circumstances likewise entailed radically new experiences of power.

Echoing back to our discussion of kingly power from the first couple of installments to this series, Grossi concedes that it was not uncommon to see great power concentrated in kingship, nor was it uncommon to see such power wielded tyrannically. However, Grossi quickly moves on to the vital qualifications we saw from Kern and others, noting that in fact even taking those instances into account, what distinguished the medieval period, was in fact an absence of the “totalizing and all-encompassing” power and mentality which was “the distinguishing feature and the ultimate ambition of the princes of modernity...”

Grossi observes that whatever great power a king enjoyed under the medieval constitution, such power was focused on maintaining his firm grip on power: e.g., the army; public administration; and taxes. Whatever coercion was directed at the populace was restricted to the ends of maintaining that power grip. The medieval king, says Grossi, had no interest in being a modern state-like puppeteer, “who pulls all the strings in the social and economic interactions of his subjects.”

It is for Grossi just this distinction within the medieval constitution which inevitably creates the room for the generation of legal pluralism. A key part of Grossi’s analysis here begins with a focus upon how the prevailing conditions of life gave rise to the medieval version of legal pluralism. Readers of my book, A Plea for Time in the Phenotype Wars, or just regular readers of this substack, will notice a striking parallel between my argument and Grossi’s explanation of how the law of the medieval constitution was generated from, and responded to, what I’ve called “harsh Darwinian conditions.” Such conditions, as I’ve argued, and Grossi concurs, are the handmaiden of what I’ve called temporalist societies. Long time readers will recognize how Grossi’s argument dovetails with mine in this regard.

As usual, throughout this series I’ll quote him at some length, first, to allow him to sketch out the conditions of this medieval legal pluralism:

The centuries of transition between late antiquity and the medieval period, that is from around the end of the fourth century until the sixth, bore witness to a great population crisis brought about by war, disease and famine, a crisis which wrought dramatic changes upon the social and agricultural landscape. The population fell significantly and the area of land cultivated fell with it. Subsistence became more and more difficult and the natural world regained its status as an untamed and untameable environment, looming much larger in the collective imagination. The anthropocentric society of Rome, which was founded upon an optimistic faith in man’s abilities to subdue nature, was gradually replaced by a more pessimistic attitude with much less belief in man’s capacities and far greater emphasis on the primacy of reality. The anthropocentrism of classical civilization was therefore slowly overtaken by a resolute reicentrism: a belief in the centrality of the res (‘thing’), and of the totality of things that make up the cosmos.

It’s also worth mentioning here how Grossi, certainly more than any other legal historian or theorist I’ve yet read, appreciates the deeply recursive social action facts of customary law:

The law, when generated de bas en haut, is part of the complex and shifting reality of a society which is in the process of ordering itself and, by so doing, preserving itself. This type of law is not written in the commandments of a prince, in an authoritative text on the paper of the learned; it is an order inscribed in things, in physical and social objects, which can be read by the eyes of the humble and translated into rules for living.

This type of law is more organizing than empowering (or potestative in technical language). The difference between the two adjectives is not insignificant: the former signifies a bottom-up generation of law that takes objective reality into respectful account; the latter describes the law as the expression of a superior will, which descends top-down and can do violence to objective reality in its arbitrariness and artifice.

Grossi also recognizes the inescapable pluralism of legality within the medieval constitution. Notwithstanding the authoritative power of the king, he observes the danger of lazily transposing words from one context to another without acknowledging the important conceptual distinctions associated to such terms in those differing contexts. He particularly makes this point in relation to the concept of the state, and its modern implication of complete power. In an age of legal pluralism, he observes:

The medieval period demonstrates the possibility of the coexistence of diverse legal orders emanating from diverse social groups, even whilst the sovereignty of one political authority over the territory those groups inhabit remains unquestioned.

…the term state, as it is defined and deployed in current usage, has diverged profoundly from the medieval understanding of the term.

…the state [in current usage] is the historical incarnation of political power that has attained perfect completeness.

…when studying any point in the course of medieval civilization, we should not expect to find the sort of complete political power that we moderns call the state. It is thus an elementary act of intellectual (and terminological) rigour to avoid both the word and the notion state when discussing the medieval historical context.

Grossi then ties these concepts together, observing how the harshness of conditions of life following the collapse of Rome required a new legal constitution within Europe, not rooted in coded principles of aspirational perfection or idealist completion, but rather rooted deeply in the fundamental facts of life. The customary law of the medieval constitution for Grossi is therefore an expression of what he considers the inescapable reality of harsh factuality. Again, readers of my book, A Plea for Time in the Phenotype Wars, will recognize the dovetailing of that analysis with Grossi’s emphasis upon how a hardnosed factual realistic law must emerge to deal with the harshness of extant Darwinian conditions.

Out of this reality emerges what he calls the triumph of intermediary communities. Notions of individual sufficiency simply are no longer consistent with the nature of human life under such harsh Darwinian conditions.

One can therefore observe the medieval individual’s lack of self-sufficiency and his natural imperfection, his need to bury himself in the bosom of a hospitable and protective community. In a confused and conflict-ridden social reality which lacks the reassurance of a complete political power, the individual has no means of existing peacefully. He will gain it, as we shall see, only with the advent of modernity, when state and individual live in an arrangement of perfect symbiosis and reciprocity.

…social intermediaries function as refuges which allow the individual human subject to thrive and to enjoy at least a measure of representation.

The communities of which the medieval individual was a member vary widely: from nuclei of a few families, to noble houses, as well as guilds, which could be religious, charitable, professional or micro-political. The socio-political reality of the Middle Ages was composed of an extremely fragmented complex of communities, a society made up of societies. This structure would be long-lived and indeed would still be thriving on the eve of the French Revolution.

Roman legal thinking was lost by the medievals because it was unusable to them and so remained unused.

…the Middle Ages had no space for the deliberations of academics: they sought practical innovations grounded in common sense and pragmatism.

Was this an age of darkness? Do the Middle Ages constitute a time of regression unworthy of historical attention? We should beware of measuring the development of society against a single model. The legal historian, casting an unprejudiced eye over the nascent medieval reality, ought instead to recognize the innovations provoked by the loss of the Roman cultural heritage. Deprived of the inheritance of Rome, and of the undoubted cultural riches that might have been derived from that inheritance, a poorer legal culture had to be built out of procedures which could support and govern that poverty unaided.

At the risk of belaboring the point, for long time readers, I hope it is becoming clear how thoroughly Grossi is concurring with my analysis that temporalist society emerges as a necessary binding to the negative feedback loop with the natural world. The very thing which is gradually eroded by increasingly spatialist society. This dynamic is what he invokes with the use of the medievalist term “factuality.”

Factuality is an unfamiliar and somewhat obscure term; all that is clear about it is its derivation from fact. It denotes what happens when the law rediscovers facts in all their force, settles into them and allows itself to be shaped by them, rather than seeking to constrain or alter them.

And he specifically contrasts this factuality of the medieval world and its legal constitution with that of societies I’ve identified as being space biased.

When a legal culture is based on scholarship (like Roman law) or on political authority (like modern legal systems), the risk, or the privilege, depending on one’s point of view, is that the law is envisaged and devised from on high and projected upon the facts of reality, fitting them, or even forcing them, into its vision. In the medieval context exactly the opposite is true; nature and society are left unmuzzled, whilst the law contents itself with a humble normative role.

Again, it is the harshness of Darwinian conditions, following the collapse of the Roman Empire, that requires the medieval world to reconstitute law with an eye to the demands of nature – in sync with the negative feedback loop that must be adhered to by human societies under such harsher conditions if they’re to survive.

Nature in the medieval period is a looming primordial force – mysterious, yet alive and fertile, and therefore feared and respected. Medieval man expresses fealty to this force by restricting his behaviour in accordance with the rules he believes he can read in the natural world. The era which we are investigating here seeks its underlying inspiration in a deeply-held naturalism: the human dimension is shaped by physical nature, to which it submits docilely. Indeed, so strong is this naturalism as to become a form of primitivism.

We shall see that, during the modern period, there is a largely successful attempt to sterilize facts to make them legally irrelevant until an authoritative figure appropriates them and renders them somehow ‘legal’. In the Middle Ages, facts are already freighted with potential legal implications that await revelation.

…factuality leads to a view of the legal world in the early Middle Ages as one of custom, where what is traditional, or customary, begins to generate and solidify new law.

It is out of this appreciation of the imperative of factuality for medieval legality that Grossi reflects upon the nature and function of the medieval constitution’s upholding of custom as law. He explains custom through the simile of an eventually well-trodden path.

What is custom? A simple but helpful explanatory image is that of a path beaten through a forest. The path does not come into existence until an enterprising subject takes the first steps in a certain direction; he is then followed by a crowd of imitators, all convinced that his is the most rapid way to cross the forest. The path is therefore nothing more than a series of steps, repeated consistently over time.

Which is to say, recursive social action!

…custom originates from below, from things and from the Earth, from which it cannot be separated; it sticks to the Earth like a serpent and faithfully reproduces the geological, agricultural, economic and ethical structures of the surrounding reality. Secondly, custom originates from the concrete, even if thereafter its significance may be extended by analogy; it therefore carries with it the unavoidable traces of the concrete reality which it seeks to govern with its laws.

…custom is the structure that allows society to preserve itself when daily socio-political life is often confusing and conflict-ridden.

It is in customary law that we may see the constitution of the early Middle Ages, deploying the term (which may well sound anachronistic) not in the formal sense that modern jurists use it (a written charter of legal principles, like the Italian Constitution of 1948), but rather as a framework of rules that were not written down but which were nonetheless binding because they draw directly on the values to which medieval society adhered. So the term constitution is applicable because custom constitutes the various socio-political communities of the Middle Ages, giving each one stability and its own individual shape.

And so Grossi starts us along his history of European law with an invocation to appreciate the radically different social conditions of medieval life, compared to that of prelapsarian Rome. And it is in confrontation with the need to survive under these new, harsh Darwinian conditions that law must be reinvented for its “author’s” new experience of the world. In the language I’ve used in my book, and on this substance, a decisive arc in the phenotype wars saw a collapse of spatialist (or space biased) society and gave rise to temporalist (or time biased) society.

Such temporalist society is an evolutionary context or niche which selects for very different values and norms – for the priorities of different phenotypes: temporals. Temporals, with their high conscientiousness, risk aversion and attention to rules are better adapted to thrive under such harsh Darwinian conditions. And these temporals’ need for new law, law not based upon scholastic aspirations and idealist rationalism, emerges from the factuality of this new harsh demanding world of nature. Trial and error, ever adjusting to the negative feedback loop they share with the natural world, eventually finds the paths that lead to social success. This is the source of customary law. And customary law is the organic constitution of time biased society.

This is the foundation upon which the medieval constitution’s legal pluralism are initially grounded. And it is the foundation upon which Grossi continues into his history of European law. These themes will arise repeatedly, even as we start to see the constitution of temporalist society gradually erode, as inevitably, following the collapse, ever so slowly, as ever, the world of the spatials once more gradually re-emerges.

Hopefully, at this point, it is clear for both longtime and new readers, what’s at stake in Grossi’s telling of Europe’s history of law. Unpacking his arguments and insights will take up most of this series on legal pluralism. So, buckle up.

And, if you’d like to keep up on all the forthcoming analyses of Grossi’s history, and haven’t yet, please…

And, if you know of others who’d be interested in these topics, please…

1. Paolo Grossi, A History of European Law, trans. Laurence Hooper, 1st edition (Chichester, West Sussex, U.K. ; Malden, Mass: Wiley-Blackwell, 2010).