This will be the final installment of my review of Fritz Kern’s Kingship and Law. In the final section of his second chapter, he reviews the impact of a written constitution into 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 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.
What we have seen of the concept of mediaeval law was described in my previous post: the law was above both king and people. Both were subordinate to it, and all (king and people) were bound to define it and protect it – each to his own understanding of “good” and old.” Each person had veto power!
Such an environment, while somewhat unstable for the people, was even more so for the king. He was only one man – a man with some form of kin-right or birth-right, eventually coming to be sanctified by the church, but still he was one man; and equally bound by and to the same law as all other men. 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 the same 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.
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. Not in the Middle Ages: “Nieman ist so here, so daz reht zware,” or “No one is so much lord that he may coerce the law.”
But in the Middle Ages, with their purely conservative idea of law, with their rejection of politics, their fusion of law and morals, and of ideal and positive law, could not recognize at all any law of the State which modified or destroyed these private rights.
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.
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 the preservation of this good, old law that guaranteed the ruler security in his position and dominion.
Eventually, through influence of the re-discovery of Roman law, through the introduction of oath taking in front of the bishop on the occasion of the new crown, the ideas behind mediaeval law slowly gave way. In its wake arose absolutist states, ruthlessly encroaching on private rights. This encroachment is what brought forward the idea of a written constitution – one designed to keep the state in check.
The mediaeval system, in theory, sounds fine – significantly better than the “theory” behind modern, constitutionally-enabled states. The author, though sees the flaws of the mediaeval system in the execution – “the technical execution is defective.”
I keep in mind that this book was written in 1914. The author did not have the luxury of seeing how defective the “technical execution” of constitutionally-enabled law would become. Given the choice of one theory vs. the other, and each to come with some difficulty in execution, it would seem the mediaeval idea would result in a better condition for the people. The time in which the author wrote this book can explain why he held the following belief about the security one held in a constitutionally-enabled state:
Today, the subject knows only two securities…. The one is that some rules of morality stand so firm that in the long run they can be abrogated by no State…. The other is participation in the government by popular representatives….
Suffice it to say that neither security survived long after the writing of the book. Nothing stands in the way of the state and the abuse of morality, and “popular representatives” have created ways to profit from the system of government largesse. Again, no list of abuses is necessary, I believe.
The written constitution has placed the state above the law – the state self-defines and self-interprets the constitution; this places the state in a position to decide what is law and what isn’t law. 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.
It would seem, for this difference alone, one can conclude that society was not so “dark” in the Middle Ages, and one has only more reason to be saddened as to the place where modern “law” has taken society today.
As mentioned, with this I conclude my look into the book by Fritz Kern. It was tremendously eye-opening for me, as I had virtually no understanding of the law as it was understood in the Middle Ages. I anticipate I will look further into this as time goes by.