There are those who believe there was a “Great Divide” in Europe between the medieval and the modern, which happened in the 17th century. They call this the “rupture thesis” – when feudalism withered and was replaced by the sovereign state. Here I will present elements of the “continuity thesis” – the upshot of which is that, when it comes to political thought, practice and institutions, no Great Divide of the sort posited by the rupture tradition existed – or, if it did, it was a feature of the 12th century rather than the 16th.
Note that I am not arguing that states as we would understand the term emerged full-blown as early as the 12th century. Rather, my point is that the conceptual DNA of the state was established at this time and that following centuries saw the unfolding of this political vision and its crystallization into actually existing states — states that were distinctively medieval, but bearing a very strong family resemblance to the early modern state which succeeded it in the 17th century. The three revolutions that I am discussing in these columns are important manifestations of – or milestones in – this historical process. Each is intended to highlight the strands of continuity between the medieval state and its successor – while also throwing into stark relief the differences between this state and the feudal polities that preceded it.
Perhaps in a later series of posts, I’ll discuss the crystallization of the “idea” of the state – that is, the conceptual DNA of the state that guided European state-builders throughout the later medieval period. For now, though, let me move on to my discussion of the medieval “judicial revolution”.
During the early medieval era, judicial power and authority – the right and ability to adjudicate legal disputes and enforce the law – had hemorrhaged from the public authorities of the Carolingian empire into the hands first of great magnates and then lesser lords. The administration of justice was in private hands and was dispensed through the private courts of the manor or lord-dominated local courts. As kings and their chancery officials began enacting the script of corporate-sovereign statehood, however, they began looking for ways to restore the judicial primacy of the crown.
Perhaps the most obvious example of this was in England where Edward I famously demanding to know quo warranto (‘by what warrant, title, or right?’) landowners held judicial franchises when, in principle, they belonged to the crown and then taking steps to reclaim these franchises.
Kings across Latin Christendom, however, also engaged in similar programs intended to restore the royal monopoly (or at least royal hegemony) over judicial authority and to impose the jurisdiction of the crown over all temporal authorities within the realm. To this end, kings and their officers set about codifying customary law, promulgating new legislation, bringing the most serious crimes (felonies) within the exclusive jurisdiction of the crown, establishing central courts for civil litigation, and restricting the prerogatives of ecclesiastical courts. They also created various quasi-judicial commissions and offices designed to deal with serious outbreaks of violence, and appointed royal judges to dispense royal justice in areas where law had hitherto been absent or ineffective.
Perhaps most importantly, however, they sought to undermine the judicial autonomy of subordinate lords by creating or strengthening high courts with appellate and corrective powers. Across Latin Christendom, supreme courts such as the Paris Parlement, created by Louis IX around 1250, were empowered to hear appeals from parties dissatisfied with the justice they had received in the courts of lower or ordinary jurisdiction.
By these and other means, royal authorities were able to overturn local decisions, thus eroding the power of those seigneurially controlled inferior jurisdictions and undermining one of the pillars of the system of lord-rulership. To be sure, this process was not uniform – while in England local jurisdictions were effectively destroyed or subordinated to royal authority, in the more decentralized kingdoms of central, eastern and northern Europe, royal judicial authority was and contested, existing alongside large ecclesiastical communities and more-or-less independent land courts that typically enforced local custom.
Nor was it linear: in France, the Leagues of 1314-15, for example, slowed and partly reversed the efforts of royal authorities to assert jurisdiction over an ever-greater range of cas royaux. Overall, however, the system-wide trend was clear. During this era, the efforts of royal authorities to assert royal jurisdiction produced a system that combined private and public local jurisdiction with royal appellate jurisdiction to produce a mixed legal framework in which the balance of judicial power increasingly lay with the crown. This, in connection with efforts to impose a uniform royal legal framework on the entire realm, led to the crystallization of what has been called the “juridical kingdom”– that is, a territorial political community bound together first and foremost by a single set of laws that was increasingly administered by the king and his officers.