03.03.03, Harding, Medieval Law and the Foundations of the State

Main Article Content

Margaret McGlynn

The Medieval Review baj9928.0303.003


Harding, Alan. Medieval Law and the Foundations of the State. Oxford: Oxford University Press, 2002. Pp. x, 392. ISBN: 0-19-821958-x.

Reviewed by:
Margaret McGlynn
Wellesley College

In Medieval Law and the Foundations of the State, Harding sets out to discover the ways in which the word "state" was used in the Midde Ages, and in so doing to demonstrate the ways in which the concept developed. He points out that the tendency of theorists to dismiss pre-modern uses of state because it does not conform to the modern concept is unhelpful, as is the use of the word, with its modern connotations, to describe medieval structures (1-2). Focusing on the ambiguity of the term, its ability to refer to both the ruler or regime and the ruled, Harding, following Aquinas, argues that the nexus between the two was law (7). He therefore sets out on an ambitious plan to chart the development of law and legislation through Europe, from Frankish and Anglo-Saxon law to the Reformation, and through careful and consistent attention to the uses of the word state, status and estate, to chart the development of the state as ruler, the state as ruled, and the mixing of the two.

His early focus, not surprisingly, is on the former, as he explores the development of law after the fall of the Roman empire. He argues that the jurisdiction of early Frankish and Anglo-Saxon rulers began with their ability to control the disposition of lands, through recording property transactions, protecting and enforcing grants of land and immunity, and eventually, through a broader obligation to keep the peace which developed from these more pragmatic duties (26-27). As part of the development of these functions of the ruler came a concern with order, with the proper way of ordering inheritance, social relations and even disputes. From this, he argues, began the formal legal structures of the Carolingian courts: the inquest, semi-professional judges, the idea of a hierarchy of courts. Harding admits that the practical ability of these kings to maintain order varied enormously, but argues that they developed the idea of "the state of the realm," a term which begins to appear in grants to monasteries and public pronouncements (38-9).

While the Carolingians began to think in terms of a broader state, Harding argues that they and their successors generally did not have the resources to implement any kind of strong central control. Instead, the practical administration of law was frequently in the hands of local lords and towns. Chapter three details the shift from public justice to private justice in the tenth and eleventh centuries, through both the building of castles and the development of towns, and considers the implications of this for the relationship between kings, lords and communes. Harding concludes that while the direct power of the king had shrunk, at the end of the eleventh century the conditions were good for a re-assertion of public power: the king's right to confirm lords' jurisdiction was still widely accepted; towns and merchant groups, new sources of influence, could also be new sources of support, and the power of the lords, if it could be harnessed to royal ends, could form the basis of a new system of justice (67).

Chapter four examines the growth of organized peace leagues, beginning with the peace of God movements led by the bishops in the tenth century. Harding argues that the peace movements supported the growth of concepts of wrong against the public peace, but that they also raised the difficult question of enforcement. The peace movements could be taken over by secular lords, as happened in Normandy, or they could raise new associations with the power to enforce peace on the ground and thus undermine the role of the central authority, as happened in Switzerland. Nevertheless, while the peace movements might help or hinder central authorities in practice, Harding argues that they contributed to the further growth of a concern with the public state, often conceived as the responsibility of the ruler, and frequently connected with the ruler's own state (91).

Most of the remainder of the book focuses on developments in England and France. Chapters five and six examine their judicial systems and the development by their kings of mechanisms for administering justice and maintaining stability in their realms from the twelfth through the fourteenth centuries. In chapter five Harding argues that the French kings revived the system of inquests that the Carolingians had used, but to much greater effect, especially since they were combined with the king's control over his cities (112). The effects and importance of these changes were accelerated by the need to provide good government while the king was absent on crusade. With the extension of the king's machinery of justice and administration came a greater political weight to royal decisions, as Harding points out that "when important political figures or a whole class of tenant were involved, such promulgation of decisions...amounted to legislation" (123). Harding argues that the English administration went through a similar but more effective process, largely because it was a more compact kingdom. The end result was a system of administration which relied on the central authority of the king, but responded to the demands of the people for justice and stability. Chapter six then focuses on the demands for reform of this new, powerful and flexible system, and the development of safeguards against both royal power and the corruption of the growing number of officials needed to make the system work. Both types of reform were seen to be necessary to maintain the state of the king and the kingdom. The regulation of officials could be seen simply as part of the king's duties, but the regulation of the king led to the emergence of both the French parlement and the English parliament, and the further integration of legal and political change.

Having established through this argument that "'the state of the realm' came to be structured internally by law," Harding then moves on in the rest of the book to examine the ways in which the realm was ordered, and to follow the beginnings of its "transformation into the 'modern state' of the politicians" (191). Chapter seven looks at the growth of legislation, through the emergence of legal texts, the reinforcement of custom and the continued expression of the king's power to regulate law. Much of this legislation, in both England and France, circulated around property law, and Harding argues that feudalism in this period "can be seen as the prime example of the expression of social and political structures as a law of property" (207), and argues further that the land law also regulated both personal and institutional liberty, leading to a growing focus on personal actions rather than real actions. Through this process there emerged a clearer sense of the estates of the realm, a highly mixed collection of groups and individuals with corporate and individual rights, and varying connections to the king, and to royal justice. The growing self-consciousness of these groups was reflected in the growth of parliament, especially in England, where the estates of the realm demanded a say in the governance of the realm. Having examined the growth of the estates, in chapter eight Harding moves on to look at the state of the monarchy in the later middle ages. His focus here is on the ways in which the advanced adminsitrative capacity of the state had changed the nature of what a king could do and how and whether he should be restrained.

Finally, in chapter nine, he argues that the final shift in the meaning of "state" from law to politics occured in the sixteenth century, under the pressure of the Reformation. Up to this point the state of the commonwealth had been largely associated with the state of the king, but the problems of maintaining peace and justice under religious pressure, together with the growing assertiveness of the estates, meant that there was less consensus over the king's right to determine the governance of the state and more demand for a political and constitutional model which could respond to the mixed needs of the emerging polities. It is under this pressure, Harding maintains, that the ambiguity which characterizes the modern usage of the word state emerged, through the work of theorists such as More, Starkey and Bodin.

There is little new in the detail of this book, but its contribution is in the broad perspective which Harding takes. An argument whch spans all of Western Europe for almost a thousand years moves the focus from the individual actions, changes and reforms of individual monarchs and instead presents a broader image of a cultural change taking place at roughly the same time across the continent. In this picture the national focus on the innovations of St. Louis or Edward I, or the problems of Richard II or Charles VI, seem both less innovative and less problematic, as their individuality is challenged by an argument which places them, to some extent, in the hands of the needs of the moment. At the same time, Harding does not jettison the detail; indeed the book outlines the individual changes which are the standard elements of the national accounts quite comprehensively. The biggest challenge here is the movement between the detail of the narrative and the broad sweep of the argument, in which the narrative often seems to dominate. This book requires an attentive and careful reader, but it repays the effort.

Article Details

Author Biography

Margaret McGlynn

Wellesley College