RETURN OF THE PRINCE (OR THE SCHOLAR?)

PART 7: 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.

Grossi, consistent with his earlier analytical approach, roots his perception of change in the order of law in material and social conditions. Again, this is consistent with my phenotype wars model, although Grossi doesn’t seem to understand why those conditions are changing or by what medium such conditions are translated into the different order of law. My argument of course is that that medium is the selection for different phenotypes under different material and social conditions. Nonetheless, as incomplete as I find his analysis in this regard, the emphasis upon those conditions is a first recognition necessary for getting at the wider insights of the phenotype wars model.

Before getting into that, Grossi reminds us of the hegemonic temporalist world into which such changes would finally enter. He reminds us specifically of the role of customary law in restraining kingly power.

The daily life of citizens in peacetime continues to be regulated by the age-old framework of custom, whilst the king is above all the ‘guardian of custom’, as Beaumanoir, one of the greatest French jurists of that century, puts it. The first great reformist ordonnance (ordonnance, or ‘ordinance’, was becoming the normal term for general laws made by the king), was issued by St Louis (King Louis IX) in 1254 on his return from the Seventh Crusade. However, this edict is directed at royal administrators, and the king does nothing more than reiterate the validity of local customs.

In Spain, Catalonia, Aragon, Valencia and Navarre are all dominated by local customary legal systems until the middle of the thirteenth century.

…the prince is not seen as a supreme will, with arbitrary power over his subjects, but rather as playing a role of attentiveness to nature, the great text in which the lessons of justice are written.

And Grossi reminds us:

…the historical period which the modern era so disparages with its epithet medieval (literally ‘middle period’, i.e. ‘time of transition’), lasts for the best part of a millennium.

So, to claim that such temporal society, with its legal pluralism and constrain upon sovereign power was somehow irrational or impractical is obviously nonsense. Grossi’s key emphasis though is that that medieval constitution was sculpted by human need for such a society. For reasons that he seems uninterested in, such conditions do begin to change, though. Grossi sees the new material and social conditions as beginning to give rise to an order of law that starts to favour the emergence of the sovereign prince. Or, at least, arguments for (even assumptions of) such a sovereign.

We quote Grossi at length to illustrate his position in all of this. As long-time readers here, and of my books, will recognize, at the heart of Grossi’ analysis is the appreciation of late medieval (time biased) society increasingly shifting in the direction of becoming a space biased society. (For the uninitiated, this idea of space/time biased society is fleshed out in my recent book, A Plea for Time in the Phenotype Wars.)

[At the turn of the Eleventh and Twelfth Centuries]: The collective consciousness… appears transformed: the former wariness which forced people to seek the security of a castle or a walled town is being gradually but definitively replaced by a more widespread attitude of trust and confidence. The signs of this change can be seen in the greater circulation of individuals around the continent and the progressive repopulation of the cities.

The early Middle Ages possessed plenty of schools and centres of great learning which carried out profound investigations of a theological or philosophical nature. But this knowledge tended to be confined to the monastery; it did not permeate the institutional walls to enrich early medieval civil society. In the late Middle Ages, however, schools began to appear more often in the centre of cities, attached to the cathedral.

Cultural learning could now start to circulate more widely.

The schools which took it upon themselves to foster these debates were by their nature opposed to the stifling influence of particularism, and strove instead for universal ideas. Thus began the great and, before long, widespread trend of founding universities.

Here Grossi is adopting the values-invested perspective of the spatial, as he describes the emergent conditions of space biased society, much as he adopted the values-invested perspective of the temporal, in his explanation of the factuality of customary law, as an expression of time biased society. However, his characterization which follows, of customary law as being innately unstable, I don’t find particularly convincing. Probably a better framing for this would be to say that – rather than innately – customary law became unstable under the conditions of an increasingly space biased society. And this, at the end of the day, is the crux of Grossi’s argument about the eventual adoption of 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.  

In a less complex social order like that of the early Middle Ages, when society was relatively static and social change occurred at a leisurely pace, custom was perfectly capable of fulfilling the role of the sole legal framework which governed that society.

However, custom’s innate tendency towards fragmentation meant that it became unsuitable as the sole generator of law when the social, economic and legal landscape became more developed – especially when economic relationships begin to carry a similar weight to legal ones.

It was clear that facts and customs must remain the primary determinants of the law, but when those facts and customs were spread out across a very large geographical area, and when the needs of agriculture had to be balanced against those of a vibrant mercantile economy, a need arose for broader schemata…

What was needed was an ordering framework into which to fit the facts of custom: one which would not stifle them but which would rather organize and systematize them.

There was a need to bring some unity to the diversities of custom, since otherwise unmitigated chaos would reign.

At this point in his argument, Grossi’s analysis takes an interesting and (for me) unexpected turn. Though one that, with hindsight reflection makes sense, and possibly corrects for a possible misreading with Nisbet (whether Nisbet’s fault or mine) of the introduction of Roman law. Through Nisbet I’d concluded that it was likely spatials – effectively hiding away in one of the few places that provided them shelter during the era of temporalist hegemony – in monasteries, and eventually universities, who latched onto and eventually promoted Roman law as an instrument suited to better legitimize a world in which they were more likely to proliferate and prosper. I’m still inclined to think there’s probably some (maybe a lot of) truth in that hypothesis. However, Grossi emphasizes that it would be mistaken to overemphasize or too easily revert to such an explanation. Consider some of his remarks about those events.

These were two sources of law that might lay themselves over the mass of facts and particulars and organize them according to principles, ideas and general patterns. A prince, whether a monarch or the head of a city-state, might very well perform such an operation, but this would involve renouncing his duty to adhere to nature and facts and turning instead to the setting of rules. Princes are still not allowed the role of legislator in the late Middle Ages. Instead only one option remains to a medieval culture that has by now rediscovered the importance of learning: that of scholarship, legal scholarship, to be precise.

However, so as not to jump to misleading conclusions, we must add that this scholarship is of a concrete, pragmatic nature. As we shall see, medieval jurists are no cloistered academics, foolishly absorbed in theoretical projects entirely abstract from their context. Instead, this is an age of great thinkers – mostly teachers at the many universities now dotted across Europe – real flesh-and-blood characters, well integrated into civil society and often occupying positions of power and prestige. Medieval jurists are moreover very attentive to the goings-on outside their studies and lecture halls, and acutely conscious that they bear the weighty yet honourable burden of bringing order to the potential chaos of the medieval socio-economic sphere.

On the one hand, Grossi confirms the explanation for the erosion of the legal pluralism of the medieval constitution as lying in the revolution in legal theory within the universities. However, his description of such legal scholars seems to imply they were closer to being temporals in phenotype than spatials. Might this be the implication of describing them as being “well integrated” into society, and “acutely conscious” of social demands for a workable order of law? Possibly. I’ll add that if this interpretation were in fact a true state of those people at that time, it wouldn’t be entirely surprising to me. Readers of my recent book will recall that I say it is temporals who lay the foundations for the emergence of increasingly space biased society.

My emphasis there, though, was more upon the conscientious marshalling of resources that eventually give rise to social surpluses and the capacity thereby for supporting a more functionally complex society. However, the idea that Roman law may have been initially elaborated as a means to maintain the order of law’s close factuality with new legal demands, arising from changing social and economics conditions and demands, wouldn’t seem to me implausible. It offers an additional intriguing wrinkle in the story of Roman law’s subversion of the medieval constitution and its legal pluralism.

And, of course, very much consistent with my analysis, 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. 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 goes a large step in the right direction of providing a further scholarly foundation for the phenotype wars model which I’ve been working on in my new book and on this substack. But we’re still just getting started on Grossi’s analysis.

In the next installment, 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 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, as ever, if you know others who’d be interesting in the topics we explore here, please…

Meanwhile: Be seeing you!