MEDIEVAL LEGAL PLURALISM, REVISITED

PART 1: GROSSI IN THE SPATIAL REVOLUTION

This is the first 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 below.

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PART 2: ROMAN LAW GAINS A FOOTHOLD

PART 3: MEDIEVAL CONSTITUTION TO LEGAL MONISM

PART 4: HUMANISM, NATURAL LAW, AND CAPITALISM

PART 5: THE LEGAL ENLIGHTENMENT'S RISE OF THE MANAGERIAL CLASS

PART 6: LAW IN THE THROES OF THE PHENOTYPE WARS

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Around this time last year I was writing a lengthy set of posts unpacking the fertile and intriguing history of European law as described by Paolo Grossi.¹ That set of posts were part of a series on legal pluralism (for full the index to that series, see here). Grossi’s book though was more ambitious than that. It did indeed cover the legal pluralist period of, post-Roman collapse, medieval customary law, but it also went on to chart the course of the transition from legal pluralism to legal monism. And of course it concluded with his anticipation that we were entering into a new postmodern era of legal pluralism.

That middle part of his story, though, charting the transition from legal pluralism to legal monism is in fact part of the story of what Schmitt has coined the spatial revolution. Indeed, very much in keeping with Schmitt’s perspective that law encrusts itself around a complex of patterns for the deriving of a livelihood from nature – in Schmitt’s characterization: appropriation, distribution and production – Grossi points to the emergence of new economic, technological, and geographic orientations as gradually requiring adjustment within the law.

So, having just laid out in broad strokes Schmitt’s conception of the spatial revolution, with particular reference to its legal implications, in light of his understanding of the new nomos, it strikes me as appropriate to revisit that part of Grossi’s argument which is most applicable to understanding how the spatial revolution transitioned from legal pluralism to the legal monism which underpinned and consolidated the emergence of our spaced biased society. Certainly, in a sense, those legal changes are the product of such space biased emergence, but then the encrustation of such tendencies within legal logic thereafter facilitate further propensities toward spatialism. And of course, that birth of legal monism is very much a core part of the tale of the triumph of spatialism, discussed in my book, A Plea for Time in the Phenotype Wars.

This reminder of Grossi’s arguments certainly will be of great value to any new readers who have joined us over the last year, but I’m equally as confident it will benefit the more experienced readers. We’ll start with a brief review of the earlier phase of Grossi’s argument, about the medieval conditions of legal pluralism. That will set the stage for a recapitulation of four of those original posts on Grossi’s book, which unpack the details of the legal spatial revolution unfolding during this arc of the phenotype wars spiral. Those prior posts have been edited here – ranging from strategic tweaks to broad rewriting – both to streamline the argument and to better emphasize their relevance to the current context of the spatial revolution.

Old hands around here will recall that Paolo Grossi (29 January 1933 – 4 July 2022) was an Italian scholar and jurist. He was a multi-time award winning historian of law before having a distinguished career on the bench, appointed to Italy’s Constitutional Court, which he served on for nine years, 2009 to 2018 – the final two of which he was the court’s President.

Grossi begins his story with the medieval constitution, which arose from within the society of the fourth, and especially the fifth, centuries AD, bearing the unique challenge of reestablishing law. This reestablishment 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. Central to this reestablishment of law was the pluralism that, as Schmitt might say, bracketed and neutralized the power of the supposed sovereign.

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 emphasizes, 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...”

He 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, 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 midwife of temporalist societies.

Grossi observes 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 agrarian nature of medieval life for Grossi is central in explaining its reicentricism, its reliance upon a hardnosed consequentialist factuality. For Grossi, the closeness to the margins of survival entailed in the agrarian society of medieval life dictated a law rooted in the factuality of nature’s demands for productive success. Slipping out of nature’s negative feedback loop – into the kind of unconstrained vision of a positive feedback loop enabled by more prosperous societies – would be the death knell of temporalist society, such as in medieval Europe.

The case of property rights illustrates his point. Under the agrarian conditions of medieval Europe, property rights could not be based upon Roman highfalutin notions of the independent individual nor rationalistic conceptions of the good (or just) society. Rather, property had to be legally conceived in terms of what actually worked most effectively to extract from nature the agricultural products essential to the survival of a society living near the margin of nutritional sustainability. And since principle alone could not determine the most effective property rights, people turned to experience.

Medieval law therefore came to be rooted in the facts of what did or didn’t work to improve the agricultural production essential to survival. 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. The path down to the river is gradually forged by repeated iterations of individual walkers making the decision that this particular route is the fastest, safest, or otherwise best route to follow. It is only this repeated choice to follow a particular route which gradually wears into being a path – the well beaten path as it were. This too for Grossi is how custom gradually emerges, and then gradually comes to be manifest as law.

The customary law of the medieval constitution for Grossi is an expression of what he considers the inescapable reality of harsh “factuality.” 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. Temporalist society, to refer back to my nomenclature, 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.”

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 “authors” new experience of the world. In the language I’ve used in A Plea for Time, a decisive arc in the phenotype wars spiral 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 where social cohesion and cooperation is so vital to survival. And these temporals’ need for new law, law not based upon scholarly 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 underpins the pluralist constitution of time biased society in general, and medieval Europe in particular.²

This is the foundation upon which the medieval constitution’s legal pluralism is initially grounded. And this is the legal order which persists in Europe for the better part of a millennium. However, even in the midst of that centuries-long legal pluralism, already the hard facts on the ground begin to slowly shift in new directions, ever so gradually reconstituting the lived human conditions to which law must address itself if it’s to be serviceable to human needs. Customary law, ever so gradually, starts to become unstable under the conditions of an increasingly space oriented society. And here we start to see a new interest in the adoption of that formerly abandoned Roman law, with its appeal to sovereign and centralized political power. As medieval society gradually shifted from being an almost exclusively agrarian society to one increasingly dependent upon mercantile expansionism, the legal order needed to sustain such a society had to change as well.

So, Grossi puts his emphasis in the gradual historical shift from legal pluralism to legal monism upon the changing material and social conditions that the law must engage. This perspective is consistent both with Schmitt’s idea of how a new nomos is founded, specifically within the relevant spatial revolution (see here), but it is also consistent with my model of the phenotype wars. While, from my perspective, Grossi fails to understand how those conditions came to exist, or what in human biology mediated those material and social conditions, his rooting of Europe’s history of law in those changing conditions is a major step in the direction of providing a further scholarly foundation for the grounding of that model and explaining that revolution.

In the next installment to this series on Grossi in the spatial revolution, we’ll dig more deeply into how it was that the late medieval scholastics, attempting to remain true to the factuality and hardnosed pragmatism of the medieval constitution, nonetheless, confronted with the changing material and social conditions of their world, notably manifest in the rise of expansive mercantilism, attempted the practical mission of supplementing the medieval constitution with the apparently beneficial insights of Roman law. And we’ll begin to recognize the costs, from a temporalist perspective, of those developments. So, if you want to see that installment promptly as it’s posted, and haven’t yet, please…

And, if you know anyone else who you think would enjoy joining this intellectual journey with us, please…

Meanwhile: Be seeing you!

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

2. Parenthetically, of course, there is more to legal pluralism than just customary law. This is an emphasis I’ve drawn out of Grossi. Like so many other scholars of legal pluralism, though, he appreciates that that pluralism is not restricted to definition by plurality of locality, but also is founded upon a plurality of parallel legal institutions. This is a fascinating story of how different, often competing, legal institutions (manor, canon, merchant, etc., law) both parallel and interact with each other. Another great historian of law that likewise addresses those dynamics of competing legal institutions, who had a great impact on my own early thinking about these questions, and whose arguments about the history of law I’ll eventually need to address through the lens of the phenotype wars model is Harold Berman: Harold J. Berman, “Background of the Western Legal Tradition in the Folklaw of the Peoples of Europe,” University of Chicago Law Review 45 (1978 1977): 553; Harold J. Berman, Law and Revolution: The Formation of the Western Legal Tradition, Reprint edition (Cambridge, Mass.: Harvard University Press, 1983); Harold J. Berman, “The Origins of Historical Jurisprudence,” The Yale Law Journal 103, no. 7 (1994): 1651–1738; Harold J. Berman, Law and Revolution, II: The Impact of the Protestant Reformations on the Western Legal Tradition (Cambridge (Mass.): Belknap Press: An Imprint of Harvard University Press, 2006).