For longtime readers, this is a condensed version of the several posts I have made on this subject. I have also added a minor amount of new material.
Examples of decentralized society in history are often hidden. They are hidden because those in decentralized societies never bothered to keep records. They are also hidden for the purposes of the current state. I have previously written about anarchy in the Southeast Asian Highlands as one example. Here, I will present the time of the Middle Ages as another.
This time offered a system of private law. A law not based on the edicts of the king, but based on local tradition and culture. The king was not above the law, but equally subject to it. For law to be law, it must be both old and good. Each lord had a veto power over the king and over each other law (I will use the term “lord” for those landed free men. Even the serfs could not be denied their right without adjudication. Land was not held as a favor from the king; title was allodial. A man’s home truly was his castle.
Although the term has fallen out of use in the academic community, for many this period is known as the Dark Ages – with all of the associated stereotypes: barbarians, boorish behavior, and the uncivilized society that came to Europe with the fall of the much more civilized Rome.
The Dark Ages is a historical period used for the first part of the Middle Ages. The term emphasizes the cultural and economic deterioration that supposedly occurred in Europe following the decline of the Roman Empire. The label employs traditional light-versus-darkness imagery to contrast the "darkness" of the period with earlier and later periods of "light".
How did people live absent a strong central power (Rome)? In what manners was governance achieved? How did such a society evolve over the centuries into the nation-states of Europe? From whose perspective were these ages “dark”?
Hans-Hermann Hoppe, in his essay entitled “On the Impossibility of Limited Government and the Prospects for a Second American Revolution,” makes reference to certain aspects of this time period in history:
Feudal lords and kings did not typically fulfill the requirements of a state; they could only "tax" with the consent of the taxed, and on his own land every free man was as much a sovereign (ultimate decision maker) as the feudal king was on his.
Tax payments were voluntary. On his land, each free man was as sovereign as the king. This doesn’t seem so “dark.”
Hoppe quotes Robert Nisbet:
The subordination of king to law was one of the most important of principles under feudalism.
The king was below the law. This might be one factor as to why the time period is kept “dark.”
Hoppe references a book by Fritz Kern, “Kingship and Law in the Middle Ages.” The book was originally written in German in 1914, and is a thorough and eye-opening examination of the relationship of king and lord during this time period, as well as the relationship of both king and lord to the law. I will rely upon, and will quote extensively, from this book throughout this essay. Except as noted, all quoted items will be from this book.
During the early Middle Ages, there was no concept of a Divine Right of Kings, nor did the earlier period hold to the idea of kingship by birthright. These ideas developed over the centuries and only took shape in the late Middle Ages. Contrary to these, in the early Middle Ages…
…an act of popular will was an essential element in the foundation of government….
To become king required consent of those doing the choosing. Additionally, the king did not hold absolute power:
…even the rudiments of an absolutist doctrine had scarcely appeared.
Both the king and the people were subservient to the law – and not an arbitrary law, but a law based on custom, “the laws of one’s fathers.”
All well-founded private rights were protected from arbitrary change….
Germanic and ecclesiastical opinion were firmly agreed on the principle, which met with no opposition until the age of Machiavelli, that the State exists for the realization of the Law; the power of the State is the means, the Law is the end-in-itself; the monarch is dependent on the Law, which is superior to him, and upon which his own existence is based.
The king and the people were not bound to each other, but each was bound to the Law, giving all parties responsibility to see that the integrity of the Law is maintained. A breech by one imposed an obligation on the other to correct the breech. The relationship of each party (king and lord) was to the Law, not to the other party, and each had duty to protect it.
Contrast this to the situation today: whereas today it is an illegal act for the people to resist the government authority, during this period after the fall of Rome the lords had a duty to resist the king who overstepped his authority. This is not to say that such challenges went unopposed by the king –physical enforcement by the lords was occasionally required – however, the act of resistance in and of itself was not considered illegal. It was a duty respected by king and people alike.
The variety and conformity, through different times and in different places, of church towers throughout Europe and European history bear witness to first the centralizing control of Rome, and then the decentralization of the Germanic period. Here I make reference to “A History of Medieval Europe: From Constantine to Saint Louis (3rd Edition)”, by R.H.C. Davis
Davis uses the architectural styling of various church towers built throughout Europe to illustrate the decentralization of society that began with the decrease in Roman influence. He begins with a review of monumental architecture during the time of general Roman rule, preceding the early Middle Ages:
Under Roman rule the general style of monumental architecture had been recognizably uniform in all the provinces of the Empire, from Britain to Africa and from Spain to Syria. In the Dark Ages, something of that uniformity had been maintained…the buildings of the Ostrogoths, Visigoths, Lombards, and Franks were built as imitations (though sometimes poor imitations) of the Roman or Byzantine style. But in the period from 900 to 1250 this uniformity ceased completely…in the Latin West there was a whole medley of different styles.
Davis then goes on to describe the differences: from Saxony, to the Rhineland, to Lombardy, to Rome, and France:
They stand as monuments to the intense localism of the High Middle Ages, when every man’s ‘country’ (patria) was not the kingdom, duchy, or county in which he lived, but his own town or village. An echo of this sentiment may still be caught by the French peasant who refers to his village as mon pays [my country], but in the Middle Ages it was all pervading.
The distinctions, region by region, extending to the area of law:
Even the law might change from village to village; a thirteenth-century judge pointed out that in the various counties, cities, boroughs, and townships of England he had always to ask what was the local customary law and how it was employed before he could successfully try a case. The legal uniformity of the Roman Empire had disappeared completely, and law, like the architectural style of the church-towers, varied from parish to parish.
Davis describes medieval civilization as “firmly rooted. It grew out of the earth, as it were.”
Before going further into Kern’s work, it might be worthwhile to spend a few minutes on the topic of serfdom. Kern spends much time on the relationship between the lords and the king, what about those on the lower rungs of society’s ladder?
The term serfdom comes with a tremendously negative connotation. However, when considering this institution of social structure it might be good to keep in mind:
Taxes levied by the state took the place of labour dues levied by the lord….Serfdom is an institution that has always been commonplace for human society; however, it has not always been of the same nature.
I mention this not to justify, compare, or romanticize. However it might be beneficial to start with a cleaner sheet of mental paper when considering historical serfdom. The serfs paid a tax in labor. Today we pay a tax in currency units usually earned by our labor, and at rates often far higher than the rates experienced by the serfs. At least the serfs had no misplaced views about their lot in life.
Serfs who occupied a plot of land were required to work for the Lord of the Manor who owned that land, and in return were entitled to protection, justice and the right to exploit certain fields within the manor to maintain their own subsistence. Serfs were often required not only to work on the lord's fields, but also his mines, forests and roads. The manor formed the basic unit of feudal society and the Lord of the Manor and his serfs were bound legally, economically, and socially. Serfs formed the lowest social class of feudal society.
Other than the constraints on the serf regarding relocation, what about the above paragraph is not applicable to today?
A hint at the relationship between serf and lord is offered in the following 7th century Anglo Saxon "Oath of Fealty":
"By the Lord before whom this sanctuary is holy, I will to N. be true and faithful, and love all which he loves and shun all which he shuns, according to the laws of God and the order of the world. Nor will I ever with will or action, through word or deed, do anything which is unpleasing to him, on condition that he will hold to me as I shall deserve it, and that he will perform everything as it was in our agreement when I submitted myself to him and chose his will."
The serf pledged his loyalty to a lord who acted “according to the laws of God and the order of the world.” His loyalty was conditional: as long as the lord acted in accordance with “our agreement when I submitted myself to him,” the serf was obliged to remain loyal to his oath.
There were remedies if the lord did not keep up his end of the bargain. A serf was afforded several social and legal protections:
The landlord could not dispossess his serfs without legal cause and was supposed to protect them from the depredations of robbers or other lords, and he was expected to support them by charity in times of famine. Many such rights were enforceable by the serf in the manorial court.
Presumably being a serf was better than many other alternatives available at the time – why would a serf insist on “legal cause” before being dispossessed by the lord? Why not simply rejoice at being set free?
Here I do not refer to Frederic Bastiat’s classic work, but the law as understood in mediaeval times after and absent Rome, and before development of anything even modestly resembling today’s nation-state.
Kern contrasts this mediaeval law with what is referred to as law today:
For us law needs only one attribute in order to give it validity; it must, directly or indirectly, be sanctioned by the State. But in the Middle Ages, different attributes altogether were essential; mediaeval law must be “old” law and must be “good” law….If law were not old and good law, it was not law at all, even though it were formally enacted by the State.
Consider how pathetic our society would seem to someone coming from this past time that Kern describes. He comes from a place that held that law was grounded in something more than the whims of the king. He comes to a place where law is defined as anything goes as long as the state says it does. And he sees a society beholden to this.
This mediaeval time traveler looks back to his time, and considers that for law to be law, it must be “old”:
Law was in fact custom. Immemorial usage, testified to by the eldest and most credible people; the leges patrum, sometime but not necessarily proven by external aids to memory, such as charters, boundaries, law-books, or anything else that outlived human beings: this was objective law. And if any particular subjective right was in dispute, the fact that it was in harmony with an ancient custom had much the same importance as would be given today to the fact that it was derived from a valid law of the State.
Further, he considers that the law to be law must be “good”:
Where we moderns have erected three separate alters, to Law, to Politics, and to Conscience, and have sacrificed to each of them as sovereign godheads, for the mediaeval mind the goddess of Justice is enthroned, with only God and Faith above her, and no one beside her.
The mediaeval mind did not separate justice from law – the law was to serve no other purpose, no other objective, no other god.
The monarch remained free to bestow privileges…
…so long as no one thereby suffers wrong. He can, for example, make grants from his own possessions, so long as the community does not thereby suffer.
Consider the simplicity and justice of this, and how foreign and corrupt today’s law would appear to our time traveler.
The law was always there, either discovered or waiting to be discovered. That bad practice at times overtook the law did not change or replace the underlying “good” law. This did not require passing another, new law. It only required the discovery of the old law – discovery in its most simple and direct sense; something that previously existed, waiting to be found. “The old law is the true law, and the true law is the old law.” One cannot be separated from the other.
But not today. Kern offers further views on today’s law:
For us, the actually valid or positive law is not immoral but amoral; its origin is not in conscience, God, nature, ideals, ideas, equity or the like, but simply in the will of the State, and its sanction is the coercive power of the State. On the other hand, the State for us is something holier than for mediaeval people….
What a miserable concept we live under. Imagine our poor time traveler, the pity he feels for this miserable lot.
For us, the heirs of scholastic jurisprudence, law is only secondary; the State is primary. To the Middle Ages, law was an end in itself, because the term “law” stood at one and the same time for moral sentiment, the spiritual basis of human society, for the Good, and therefore for the axiomatic basis of the State. For the Middle Ages, therefore, the law is primary, and the State only secondary….the State exists for the law and through the law, not the law through the State.
By this time, our time traveler must be rolling his eyes, wondering what mysterious potion has overtaken this pathetic society. He is not naïve – he knows that the law was not held perfectly in his time, that there were abuses and attempted abuses that required a man to stand.
In that regard, Kern offers an example of a lord standing for the law and in opposition to the king. King Clovis wished to retain a costly vase over and above his due, in order to donate it to the church. All agreed to this except one, who ended up enforcing his objection by smashing the vase. Certainly, the king was not pleased. As neither the king nor the majority had authority to punish this act directly, the king found an indirect manner to exact revenge; this had to wait one year, and was based on an equally exaggerated instance where the king’s opponent stumbled in his duty and obligation.
Where was this old and good law to be found?
It will be found, in the first place, where all morality resides – in Conscience. And, indeed, since all law comprises all the rights of the community, it will be found in the common conscience of the people….
…in the second place, the law will be found in old tradition.
The people themselves hold the law. They know the good law because it is in their conscience – the keeper of their moral sense. They know the old law, because it is passed down to them. These two are combined, always tested and testing. Each individual had a duty to this.
The moral tone of the Middle Ages scorned considerations of expediency, and always took right and wrong seriously, no matter how big or small the question at issue.
The idea of destroying a village to save it, or abrogating property rights to preserve them, or stealing from one to help another in more need would be quite foreign to the mediaeval mind – or to our poor time traveler, who would likely have a reaction to this sad tale similar to this.
Kern summarizes what has been gained and what has been lost via this transition from customary law to statutory law.
For a simple person, in whom something of the mediaeval spirit survives, it is a strange thing that all law should exist in books, and not where God has planted it…. The positive written law brings with it learned lawyers and scholars, cut off from the people. Although in fact statute law is more accurate and certain, unlearned persons become less and less sure what the law is.
How often are we reminded: ignorance of the law is no excuse? This saying probably has roots in the concept of law as understood in the Middle Ages – law based on conscious, law based on a common understanding of justice. Today, that saying is useless, given the thousands of miniscule yet intrusive laws and regulations passed every year by various government agencies.
But it is in technical progress alone, not in progress in ideals, that the modern concept of law is superior to the mediaeval.
Our time traveler would certainly agree, as do I.
Imagine the liberty in such a world if every individual, or even legislator, had such power. Imagine no more: there was a time and place where this was quite true! And no, the outcome was not chaos, but a true check on kingly abuse. Kern explores this further:
The relationship between monarch and subject in all Germanic communities was expressed by the idea of mutual fealty, not by that of unilateral obedience.
Especially in the time of the early Middle Ages, there was no concept of the king as sovereign. There was also no concept of each individual as sovereign.
The king is below the law….if the monarch failed in these duties [to the law] – and the decision of this question rested with the conscience of every individual member of the community – then every subject, every section of the people, and even the whole community was free to resist him, to abandon him, and to seek out a new monarch.
As time passed, the right of each individual to veto evolved into the right of the community. But in no way did this change the fact that the king was held to be below the law. Imagine if a single congressional representative (for example Ron Paul) had the authority to stop any proposed legislation! While not the authority of the individual, still the idea that it takes complete unanimity for the state to act is a powerful idea.
There was no final arbiter other than the law. Both king and community owed a duty to respect and defend the law:
To the early mediaeval mind, king and people together, welded into a unity which theoretical analysis can scarcely divide, formed the State. Sovereignty, if it existed at all, resided in the law which ruled over both king and community. But any description of the law as sovereign is useful only because it emphasizes the contrast with later political ideas; otherwise it is better avoided. The blunt “either-or” of later times – either the king is unlimited or the people is sovereign – is an impossible dilemma from the standpoint of the early Middle Ages.
A significant ceremony was performed in 842, cementing the bonds between the brothers Louis the German and Charles the Bald (sons of Louis the Pious) and against their oldest brother, Lothar. Of importance, this oath demonstrates the power of the lords and the power of the oath. Each brother took a solemn oath in front of the army of the other, and in the language of the other’s army – Louis, giving his oath in Old French, and Charles giving his oath in Old High German. The text of the oath is quite revealing (from “A History of Medieval Europe: From Constantine to Saint Louis (3rd Edition)”, by R.H.C. Davis.):
For the love of God and for the Christian people and for our common salvation, from this day forward, so long as God give me knowledge and power, I will help this my brother [both with my aid and everything] as by right one ought to help one’s brother, on condition that he does the same for me, and I will not hold any court with Lothar, which, of my own will, might cause [my brother] harm.
Then, the people of both armies took an oath:
If Louis [or Charles] observes the oath which he has sworn to his brother Charles [or Louis] and if Charles [or Louis], my lord on his part does not keep it, if I cannot turn him away (from his wickedness), neither I nor any of those whom I will have been able to turn away, will give him any help against Louis [or Charles].
The lords of Louis pledged to Charles that they will not support Louis if he breaks his oath (an act of “wickedness”) to Charles (and the other way around, of course)! The kings had no power absent their lords. And it was the oath given by the lords that bound, not a decree by the king.
A Written Constitution: Protecting the State from the People
Kern examines the impact of a written constitution on the relationship of state, people and law:
In modern usage we mean by the term “Constitution” that part of the general legal order of a State which controls the powers of government and the mutual relations between the government and the subjects.
Was there such a thing as a “constitution” in the early Middle Ages?
The monarch was subject not to a specific constitutional check, but to the law in general, which is all-powerful and almost boundless in its lack of definition; he is limited by this law and bound to this law.
In mediaeval law, the law was above both king and people. Both were subordinate to it, and all (king and people) were bound to protect it. Such an environment (without a written constitution), while somewhat unstable for the people, was even more unstable for the king. He was one man, equal to the others under the law. He was controlled by the law, not controller of it:
From the point of view of constitutional machinery, the control exercised in this way by the law will presumably be very incomplete and insecure – the very breadth of the mediaeval idea of law allows us to guess this. But in theory there resulted a complete control of the monarch, a subjection to law so thorough that political considerations and reason of State were excluded and out of the question.
That the monarch faced an equal insecurity and instability in the law as did the people was the most remarkable check on any potential abuse. As opposed to modern, constitutionally defined states where it evolves that it is only the people that have to fear the law, in the mediaeval time all were equally subject to and therefore controlled by the law.
The Magna Carta stands as the shining example in western history. From Wikipedia:
The 1215 charter required King John of England to proclaim certain liberties and accept that his will was not arbitrary, for example by explicitly accepting that no "freeman" (in the sense of non-serf) could be punished except through the law of the land, a right which is still in existence today.
Magna Carta was the first document forced onto a King of England by a group of his subjects, the feudal barons, in an attempt to limit his powers by law and protect their privileges. It was preceded and directly influenced by the Charter of Liberties in 1100, in which King Henry I had specified particular areas wherein his powers would be limited.
Given my understanding based on Kern’s scholarship, I don’t believe this document represented a step forward for liberty, but a step back – at least when compared to the early Middle Ages, when the king’s powers did not have to be limited, as his powers under the law were no greater than those held by the lords.
The constitutional form has protected the monarch from the people much more than it has protected the people from the monarch – certainly when compared to earlier mediaeval times. At the same time, the constitutional form has provided virtually no protection of limiting the actions of the monarch – even for those constitutions with some form of rights embedded – for example, the U.S. Constitution with its Bill of Rights.
It seems, instead of the pinnacle of governance and protection of liberty, the constitutional form represents a significant step back from the liberties afforded to even the lowliest members of early mediaeval society.
For this reason the modern state feels free to create laws that run roughshod over private rights. No list need be created to demonstrate this reality of every modern state. This was not possible in the Germanic tradition of the Middle Ages: “Nieman ist so here, so daz reht zware,” or “No one is so much lord that he may coerce the law.”
The limitations thus placed on the mediaeval prince were, in theory, much greater than limitations placed on any constitutionally-enabled monarch or president:
For the latter can establish new law in conjunction with the other supreme constitutional organs, but the mediaeval monarch existed for the purpose of applying and protecting the good old law in the strictest imaginable sense.
No one was “legislating” in the sense we understand that term today.
The mediaeval State, as a mere institution for the preservation of the law, is not allowed to interfere for the benefit of the community with private rights.
There was no concept of the public good.
The State itself had no rights….It can, for example, raise no taxes, for according to the mediaeval view, taxation is a sequestration of property.
It was only by preserving this good, old law that the king guaranteed security in his position and dominion.
The written constitution has placed the state above the law – the state self-defines and self-interprets the constitution; the state has a monopoly on the adjudication of its dictates. This places the state in a position to decide what law is, and how law is applied. The only hope one has to influence this is to turn a minority into a majority. Such a concept was unknown to the mediaeval mind – each individual held a form of veto. No majority was necessary, and minority rights were fully protected – even for the minority of one.
What changed, that brought man from an unwritten law, one that kept the king in check, to a written law, captured in a constitution? I do not know with certainty, however I present the following for thought: the change was grounded in the change from allodial land title to fee simple title. This happened in England first, and preceded the much-heralded written constitution, the Magna Carta, by 150 years.
This change occurred as a result of William the Conqueror’s defeat of Harold Godwinsson at the Battle of Hastings in 1066. As a result of this, William claimed that he had won the whole country by right of conquest. Every inch of land was to be his, and he would dispose of it as he thought fit.
All land was thereafter owned by the crown. Perhaps in this can be found the seeds of the desire by the lords for the Magna Carta.
The Dark Ages were not so dark. In this time, law was custom. King and lord were under the law and were bound to serve and defend the law. Each individual had veto power if he could demonstrate the validity of his veto in the law, the old and good law. That the law was not written was not a detriment to the people, but a check on the king. The king was as uncertain in the law as were the lords.
The early Middle Ages offer an example in history of political organization different than what we today understand as government, or the state. One need not romanticize the period to take away from it valuable examples of how life might function in a more decentralized condition.