LAW IN THE THROES OF THE PHENOTYPE WARS
PART 6: GROSSI IN THE SPATIAL REVOLUTION
This is the sixth in a series on Paolo Grossi’s analysis of the Schmittian spatial revolution within the history of European law. An index to the entire series is provided here.
The previous installment to this series, towards its end, concluded that: “The triumph of the spatial revolution, in significant part built upon this symbiotic marriage of radical, deracinated individuals, directly subject to the legal absolutism of the monist sovereignty, is fully manifest. The temporalist world of organic community, tradition, and customary law, with its legal pluralism, has been vanquished.”
Or, at least, so it might have seemed from the perspective of managerial liberalism’s legal Enlightenment. Through the rest of his book, though, Grossi argues that newly shifting material and social conditions are giving rise to a new emergence of legal pluralism. That remains on my part a discussion for another day – though I have briefly touched on such prospects in A Plea for Time in the Phenotype Wars. What I want to emphasize here, instead, is how the part of Grossi’s book discussed in this series reads not merely like a legal specialization in the broader study of the phenotype wars, but also as a telling of the story of the spatial revolution through the lens of legal history.
We’ve seen how the deeply temporalist sensibilities of the medieval world, forced to adapt to the collapse of Roman culture and institutions, had to turn away from the anthropocentric legal order, which could be subsidized by a wealthy society, toward a reicentric legal order, rooted in the objective things of the world. A hardnosed, factuality-based law that better married human society to nature’s negative feedback loop was required to endlessly push toward the marginal benefits in economy and production which would allow the survival of agrarian economy of great scarcity. This included a complete reimagining in the legal mind of the nature and role of the individual and property ownership. In the process, social arrangements which would have been an abomination to the Roman jurists proved themselves to medieval legal needs.
As such medieval law, though, was reicentric – based not on lofty principles but on what had proven beneficial on the margins of agrarian survival – answers to the legal challenges of medieval life could not be found in lofty principles and aspirations, but had to emerge from the recursive experience of practical life. Things that failed to work were abandoned; things that worked were repeated. This Grossi says was the source of custom, which, through the inherited lessons of culture and the demands of survival at the margins, became acknowledged as customary law. Rather than based on some appeal to universal truth – true everywhere for everyone – customary law emphasized the particularistic: what was true for this locality, this community, at this moment in history.
Entirely consistent with my arguments in A Plea for Time in the Phenotype Wars, Grossi observes that history does not stand still. And eventually the very economy grounding and grounded by customary law experiences endogenous changes. Successful agrarian methods eventually give rise to surpluses – stabilizing life expectancy, and eventually creating a greater opportunity for non-agrarian careers – that eventually find their way into the coffers of the monasteries and universities.
Eventually, too, this new, increasing wealth contributes to the reopening of ancient trade routes, which leads to the emergence of new merchant economies. All of these developments, however – arising though they were from the legal institutions of customary law based upon a scarcity agrarian economy – constituted dramatic economic and institutional movement out from the shadow of such legal institutions. As Grossi observes, a reicentric law, however organic to agrarian life’s scarcity, once its successes sufficiently lift the society out of the marginal survival condition of scarcity agrarian life, becomes obsolete in addressing the newly emergent social and economic order.
It is in this context that those newly bolstered monasteries and universities, as well as other jurists, start to rediscover the value of Roman law. For it had been developed to deal with economic arrangements that much more resembled this emergent spatial revolution in production and trade than it had the scarcity of the medieval agrarian survival economy. Grossi argued that the original adoption of Roman law was still pursued under the auspices of jurists with a temporalist mindset.
They sought, in the eventual creation of what Grossi calls European common law, to maintain the virtues of customary law, in their proper place, while beneficially, strategically employing Roman law in those legal situations for which exclusive reliance upon customary law was proving sub-optimal, maybe even deleterious. These scholastics had no intention of subjecting customary law and medieval life to the full brunt of the spatial revolution. They sought to preserve what was best in medieval legal pluralism.
However, notwithstanding their intentions, Grossi concludes they had started in motion the spatial revolution in law which was not to turn back. From the monasteries and universities – increasingly flush with funds, providing a sustainable life for a growing new intellectual class of jurists – the scholastics were jeered for their patchy, bricolage style application of Roman law. And, indeed, at the very heart of Roman law were essential principles of universalism, individualism, and monist sovereignty. So the Renaissance humanists and natural law jurists could rightly argue that once the need of Roman law to solve contemporary problems had been conceded, the very logic of that Roman law militated against such obscurantist endeavors to preserve obsolete institutions such as legal pluralism and customary law.
As the viability of medieval pluralism increasing came under such pressure, the cracks in the dike of the pluralist constitution began leaking into a social transformation that would ultimately manifest in modernity. Thereby conditions became ever more conducive to the spread of legal predicates of universalism and individualism. It is out of these developments that Grossi observes the ascendance of natural law theory.
Natural law effectively completes the shift away from the reicentrism and factuality of law that underpinned the medieval constitution. Natural law entails an abstraction of law, into the realm of a kind of pure reason. This abstraction becomes an effective theoretical instrument for detaching people from their sociality, as well as the corporations and institutions which had historically served that sociality – sheltering such people from the risk of monist sovereignty (and tyrannical power). Furthermore, under the precepts of natural law, such radical, modular individualism is rolled out so as to marry the concept of ownership to the individual, while promoting the idea that this core individuality, expressed through the equal capacity to possess property, is a condition of fundamental equality.
For Grossi, right from the start, this rationalist natural law was tied up with not merely the materialist ambitions of the scientific revolution, but with the self-interest of the emerging new capitalism. Both of which I’d premise (as I expect we’ll see further on in our discussions) are manifestations of the spatial revolution. A central aspect of these historical events, for Grossi, was the necessity for the emerging new capitalism to shatter the medieval constitution’s concept of property. As we saw earlier in this series (see here), the customary law of the medieval constitution was inexorably bound to the reicentric factuality necessary for the survival of an agrarian society.
That medieval society recognized that effective conditions of production in such a scarcity context entailed openness to a complex set of property relationships, with distinctive and diverse modes of obligation and privilege. For the new capitalists, that conception of property was not adequate to their purposes. To be clear, it was not only a matter that medieval property law was antithetical to the emergent capitalists’ preferred conditions of personal profit, but such conceptions of property had become incompatible with the objective functional needs of the new emergent material and social conditions produced through the economic and technological changes sired by the spatial revolution.
In any event, the severing of property from such communal needs and bonds, and its wedding to individual possession, became a central pillar of this new law of ratio scripta: a rationalist appeal to universal individualistic law and truth, laying the foundations for capitalist accumulation. While I don’t think Grossi goes quite as far as depicting natural law and this symbiosis with capitalism as an ideology, he is unqualified in observing how it served the interests of the emerging new capitalist class, while creating a legal fiction about the equality of individuals based upon their equal capacity to possess property. And this transition to the new capitalist economy and society, with its legal fictions of individual equality based upon intrinsic capacity to possess property, Grossi reminds us, was made possible by the sundering of the medieval constitution, with its factuality of customary law, and legal pluralism.
To quote Grossi: “The individual now stood alone in front of political power, or rather a populace of individuals did so.” Here, Grossi is invoking the emergence of the social order that I proposed in a past post as the model of “mass society.” Furthermore, in the language I’ve developed for the phenotype wars model of social analysis, Grossi is observing the completed triumph of the spatials. The Gemeinschaft world of the temporals, with their corporate bodies and intermediary institutions, their customary law and legal pluralism, had to be destroyed to bring into being the new Gesellschaft capitalist world of the spatial revolution, with its mass society, possessive (and modular) individualism and increasingly unfettered markets.
As I’ve emphasized repeatedly, though, at least in our spiral of the phenotype wars, the tip of the spear for spatialism, and as I’ll elaborate further in this year’s project, the vanguard of the spatial revolution, is the nascent managerial class. It is this phenotype (see here), with their delight and aptitude for symbol manipulation which has been instrumental in breaking through the traditional boundaries of faith, wisdom, and prudence. It is they, with their verbal and cognitive dexterity, who wield their morally triumphalist appeal to universalism and rationalism as weapons to beat down threats of custom, localism, and particularity.
And all the time, they employ their subjective ventriloquism to deflect attention from how their appeals to universal principles disguise their particularistic class interests. Amid the spatial revolution, wherever we see heterarchical pluralism being displaced by modular individualism, usually just behind the curtain we find this managerial class acting as the midwife of history.
However, while all through history you find the managerial class, I don’t know (yet?) whether in prior historical spirals as much as in ours they have been the engine of the spatial revolution of their own spiral of the phenotype wars. But they certainly have been that engine in ours, and this phenomenon too is captured by Grossi in his analysis of the spatial revolution in the history of European law. Just as the scholastics had paved the way for the natural law jurists, likewise the latter paved the way for those jurists of what Grossi calls the legal Enlightenment. And it is with these legal Enlightenment jurists and theorists that we see the ambitious sprouting of the contemporary managerial class.
This emergent managerial class, though, with their already hallmark bureaucratic paternalism and aspiring social engineering, naturally, as we’d expect from what we know of them in more recent history, rather than make an open, naked claim for their own power, relied upon their ventriloquist verbal dexterity to appear to invest power in another agent. Long before, led by Marx, they discovered the promise of putting their words and ideas into the mouths of the working class, they used their ventriloquism to invest their monist, aspiring absolutism, into the monarch – as the newly discovered sovereign. It is in this aspiration that we best understand the effort to exploit the medieval scholastics’ turn to Roman law – with their patchwork solution, to newly emerging economic and technological problems for the old customary law – as a weapon to leverage the managerial class’s universalist appeals to rationalism and individualism.
At the heart of these developments is the spatialist appetite for abstraction, which presumes to assume the triumph of rationalism, ratio scriptia, over the history of reicentric law, with its emphasis upon custom and tradition. This assumption is immanent in the fancy for declarations of rights; private contract; and individualized property, all which appeal to the abstractions of natural law, while simultaneously obscuring the material and other benefits accruing to their very particularistic interests while aspiring to veil themselves in the garb of abstract universalism.
Grossi notes some distinctive features of these developments as they played out within the specific context of England compared to France, probably the two most influential legal histories within Europe. In England’s case, he acknowledges that these trends toward universalism and abstraction, removing legal legitimacy from customary law, and the implicit emergence of a managerial class, are present; they are moderated though by the failure of Roman law to successfully cross the Channel. This failure provided a toehold for resistance to royal sovereignty that had been absent across the continent.
However, we’d be remiss if we failed to qualify that observation with the fact that Grossi saw this same legacy as manifesting in the making of English common law. And, as discussed in the last post and explained elsewhere on this Substack, English common Law – contrary to the mistaken impression that it entailed the validation of customary law – in fact constituted the triumph of an emergent managerial class over the legal pluralism of customary law.
Still, for all that, Grossi observes that having avoided a full instantiation of Roman Law, England retained a degree of legal pluralism uncharacteristic for the continent during the same era. Rather, of course, given Grossi’s emphasis upon the role of the legal Enlightenment, it shouldn’t be surprising that he sees France, and its revolution, as the guiding light of legal history across European modernity.
As in England’s enclosure acts, except much more aggressively in France, custom is supplanted by legislation. The idea that law is to be determined by the long, lived experience of the community, and enshrined in its traditions and customs, is supplanted by the idea that wise thinkers, bathed in the rationalism and universalism of the Enlightenment, should implement the profound insights of natural law into codes dictating the law to the community through legislation.
In Grossi’s analysis, this triumph of the legal Enlightenment, manifest through the French Revolution, and Napoleon’s aggressive expansion of that revolution, constituted the triumph of legal modernity. And legal modernity is the triumph of legal monism. In Grossi’s words, this new legal condition “does not tolerate any diversity that might ensue from membership of a religious faith…nor from the participation in any of the corrupting old intermediary social structures.”
Rather, under the new monist legal reality: “Persons are now abstract, socially naked individuals.” And as such, with their traditional intermediary institutions and customs crushed, they have nowhere left to turn for their protection, identity, social bonds, and welfare, than the monist sovereign, now fully animated by the bureaucratic paternalism and social engineering vanity of the insurgent managerial class.
The triumph of the spatial revolution, in significant part built upon this symbiotic marriage of radical, deracinated individuals, directly subject to the legal absolutism of the monist sovereignty, is fully manifest – though its imperialist spread remains still to triumph. However, by this point in the phenotype wars spiral, the die has been cast, the spatial revolution consummated: the vanquishing of the temporalist world of organic community, intermediary institutions, tradition, and customary law, with its legal pluralism, is now only a matter of time.
Over the coming centuries the force of the spatial revolution’s institutions – e.g., monist legality and sovereignty; free trade, with its relentless commodification and commercialization of life and nature; alongside the occasional military conquest, always buttressed with appeals to universalist principles and moral superiority – would gradually mop up all the remaining skirmishes of recalcitrant, “irrational,” particularistic resistance of temporalism. Such is the turn of the phenotype wars spiral, and Grossi does an excellent job of unpacking for us how all this was legitimized through the spatialist capture of law, illustrating and animating the spatial revolution.
While Schmitt had focused upon the internationalization of the European legal order as a production of the spatial revolution, Grossi turns our attention to the internal dynamics of that legal order. I’d mentioned in earlier posts (see here and here) my previous challenges to Schmitt’s notion of a new consciousness, arising from the new conceptions of space occasioned by the spatial revolution – unleashed upon the sea and new nomos it occasioned – but why now? England for instance had always been an island, the sea was always there. Why suddenly now do we get the Age of Discovery and the passion for the free sea? And I’d also responded to appeals to technological means that if no explanation is required for a new psychology, a new phenotype, than the same question must be asked in infinite regress about the alleged technological predicates.
Grossi helps us better understand that there was nothing sudden about it. In fact, what I’d call the applicable spiral of the phenotype wars was continually in motion. Step by step, from customary law to the scholastics, through the humanists and natural law, into the legal Enlightenment, the juridical and juristic foundations for Schmitt’s (see here and here) nomos were in constant motion; they were constantly being born out the overdetermined, multi vector forces of economy, geography, technology, culture, and politics. No explanation for a sudden change in consciousness is required because the selective pressures had changed over those centuries.
My argument of course is that those emergent pressures were selecting for new psychological phenotypes – spatials over temporals – but we don’t need to litigate that argument in detail here (instead, see here). All I’d ask that the reader take from these last couple series is that Schmitt’s spatial revolution not be considered a radical rupture with legal precedent, as so often implied in his appeal to the European Public Law arising from the state system of the Westphalian peace, but that rather as Grossi shows us, it was a gradual grinding of the inexorable gears of legal history, responding to shifting material and social conditions.
Though perhaps the reader may forgive me in concluding with the observation that my argument has always been that the repeated phenotype wars process (at some arc in its spirals) entails the growth of prosperity, division of labor and specialization, and bureaucratic ambition, inevitably generating the evolutionary niche for the emergence and eventual hegemony of the spatials. It seems perfectly plausible to conjecture that that process is precisely what Grossi was describing, and Schmitt largely ignoring.
But we can leave that there for the moment. Now that we’ve reviewed both Schmitt and Grossi’s unpacking of the spatial revolution, as a matter of the legal and the political, we may start to branch out along some of the tributaries that their research has opened to us. This will include a deep dive, accompanied by Karl Polanyi, into the economic dimensions of Schmitt’s spatial revolution, as well as the global networks of communication and transportation which congealed into the web-like infrastructure of that spatial revolution.
So, if you want to be among the first to see all that, soon as it’s hot off the press, and you haven’t yet, please…
And, as always, if you know of anyone else who’d be interested in topics discussed here, please…
Meanwhile: Be seeing you!