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
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.
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
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
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".
(Not So) Dark Ages
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"?
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:
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.
were voluntary. On his land, each free man was as sovereign as
the king. This doesn’t seem so "dark."
of king to law was one of the most important of principles under
was below the law. This might be one factor as to why the time
period is kept "dark."
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
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….
king required consent of those doing the choosing. Additionally,
the king did not hold absolute power:
rudiments of an absolutist doctrine had scarcely appeared.
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."
private rights were protected from arbitrary change….
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.
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.
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.
Decentralized Society: Church Towers Bear Witness
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
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:
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
goes on to describe the differences: from Saxony, to the Rhineland,
to Lombardy, to Rome, and France:
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.
region by region, extending to the area of law:
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.
medieval civilization as "firmly rooted. It grew out of the
earth, as it were."
Road from Serfdom
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?
comes with a tremendously negative connotation. However, when
considering this institution of social structure it might be good
to keep in mind:
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.
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
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.
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":
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."
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.
remedies if the lord did not keep up his end of the bargain. A
serf was afforded several social and legal protections:
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
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?
Law (No, Not THAT One)
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.
this mediaeval law with what is referred to as law today:
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.
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
time traveler looks back to his time, and considers that for law
to be law, it must be "old":
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.
he considers that the law to be law must be "good":
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.
mind did not separate justice from law – the law was to serve
no other purpose, no other objective, no other god.
remained free to bestow privileges…
as no one thereby suffers wrong. He can, for example, make grants
from his own possessions, so long as the community does not
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:
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
What a miserable
concept we live under. Imagine our poor time traveler, the pity
he feels for this miserable lot.
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
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.
this old and good law to be found?
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.
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
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.
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.
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.
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.
is in technical progress alone, not in progress in ideals, that
the modern concept of law is superior to the mediaeval.
traveler would certainly agree, as do I.
Individual Vested with Veto Power
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:
between monarch and subject in all Germanic communities was
expressed by the idea of mutual fealty, not by that of unilateral
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
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.
no final arbiter other than the law. Both king and community owed
a duty to respect and defend the law:
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.
Power of the Oath
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
History of Medieval Europe: From Constantine to Saint Louis
(3rd Edition), by R.H.C. Davis.):
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
people of both armies took an oath:
[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].
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.
Written Constitution: Protecting the State from the People
the impact of a written constitution on the relationship of state,
people and law:
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.
such a thing as a "constitution" in the early Middle
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.
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:
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
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.
Carta stands as the shining example in western history. From Wikipedia:
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.
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.
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.
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.
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
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."
thus placed on the mediaeval prince were, in theory, much greater
than limitations placed on any constitutionally-enabled monarch
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.
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.
no concept of the public good.
itself had no rights….It can, for example, raise no taxes, for
according to the mediaeval view, taxation is a sequestration
It was only
by preserving this good, old law that the king guaranteed security
in his position and dominion.
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
Beginning of the End
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.
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.
was thereafter owned by the crown. Perhaps in this can be found
the seeds of the desire by the lords for the Magna Carta.
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
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