Tuesday, October 9, 2012

Every Individual Vested with Veto Power

Imagine the liberty in such a world.  Even if weighed down by a republican or democratic form of government, imagine if every 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.

In the conclusion of the first part of his book Kern has written a summary of the major points he has raised.  I will freely make use of this summary, as he has organized the points far better than I could.

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 the people as sovereign. 

The king is below the law….if the monarch failed in these duties – 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.

Both king and people had a duty to the law; the duty was not to each other.  Kern offers an example of King Clovis, who 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.   It should be noted, the king found an indirect manner to exact revenge; this had to wait one year, based on an equally exaggerated instance where the king’s opponent stumbled in his duty and obligation. 

Note, neither the king nor the majority had authority to punish this act directly.  The only recourse was to find some other failure in the opponent and use this as a pretext for revenge.  It strikes me as a demonstration that the unyielding approach taken by the king’s opponent was not always the best idea.  More importantly, it was left open to each individual to decide where the line should be drawn.

As time passed, the right of each individual to object 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.  Can you imagine if a single congressional representative (for example Ron Paul) had the authority to kill any proposed legislation?  While not the authority of the individual, still the idea that it takes unanimity for the state to act is a powerful idea.

Onto this secular element in mediaeval monarchy, the ecclesiastical theory of magistracy was grafted….the Church is authorized to declare the judgment of God.

The introduction of the Church into the relationship between king and people slowly began to change and somewhat diminish the authority of the people – it would seem to the benefit of both king and bishop.  The view of the church went from one of passive obedience to a sacramental consecration.

Any steps taken to sanctify the king, make him God’s chosen, would begin to diminish the role and manner the people had to resist the king’s authority – at the same time, increasing the church’s power.  In this, one can find the beginnings of what would become known as the divine right of kings.

The church began to take over the role of deciding when the king overstepped his bounds:

The ecclesiastical theory of resistance is to be distinguished from this Germanic and feudal right of resistance, which was based on the idea of mutual fealty.

Between the idea of the people as the check on the king and the church as the check on the king, eventually the concept of constitutional monarchy emerged victorious:

[Constitutional monarchy] sought, by reconciling the extremes, to enforce the central idea of the early mediaeval State more vigorously and more permanently than the Germanic and ecclesiastical doctrines of divine right and of the right of resistance had succeeded in doing….It allowed the king to accomplish the most important constitutional acts of State only in co-operation with his subject, i.e. with popular representatives and ministers; but it gave to such acts so strong and unchallengeable a validity, that no right of resistance could be admitted.

The Magna Carta is often pointed to as the inspiration behind many future constitutions.  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, but a step back.  Even the Wikipedia entry makes a passing note in this regard:

In practice, Magna Carta in the medieval period did not generally limit the power of kings…

I commented on this recently at The Daily Bell, and reprint a portion of my comments here:

“The Magna Carta was an early attempt to rein in government, reduce the scope of monarchical rule.”

I don’t believe this is an accurate statement.  The Magna Carta codified the main characteristics of what had been the practice for centuries in the Middle Ages.  I suspect it is beneficial that we believe the Magna Carta was a milestone, or significant change in direction, as it then minimizes the risk of looking further back – into the “dark ages” – to find a healthier relationship between the king and the people.

There had been a long-standing right of resistance to the monarch if he abused his position of subservience to the law – from the earliest times of the Middle Ages (immediate post western Rome).  This right, Germanic and feudal in origin, was secured in a constitutional method in the Magna Carta; but the document only formalized what had been a well-known and well-respected concept: the king as well as the people were below the law, and if the king overstepped, the people had not just the right, but the responsibility to act.  All (even the king) owed allegiance to the law (not the king), and all had duty to it.

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 natural rights embedded – for example, the Bill of Rights in the U.S. Constitution.

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.

As I mentioned in an earlier post on this subject, I do not intend to present an idealized, romantic view of political life in mediaeval times.  Certainly, when life was very local and individuals knew all those within the community, methods of governance could be different than those that we live under today.  What might have been effective in one circumstance could not be so in another.

However, I will suggest that the mediaeval idea seems more enlightened.  Each individual had a direct say in his relationship with the king and community – not just a “vote”, but a “veto.”  Certainly, there were times when he had to defend his position through coercion; yet are not family feuds preferable to wars between nation-states? 

There are those who look for a final arbiter – a concept that would have been alien to the mediaeval mind.  Each man was the final arbiter.  Many would point to the chaos that might result if such was the case today – yet the logical conclusion of reaching for this final arbiter is to perfect world government.  After all, despite mechanisms like the United Nations and World Court, in the end if a modern state does not wish to bow to the wishes of an outside party, it can stand off to the point of war.

There was the law.  Both king and community owed a duty to respect and defend the law – as each individual understood it.  If anything was to be considered the final arbiter, it was this:

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.

But what is the law as understood to the mediaeval man?  This will come in Kern’s next, and final, chapter.

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