Liberty and Personal Law

A History of Medieval Europe, RHC Davis

Charlemagne and his descendants were not able to sustain empire.  There were many physical reasons for this – the difficulty of defending vast reaches, invasions by Vikings, Saracens, and Hungarians, etc.

But the root of the demise was an idea – an idea so strongly held that it overcame the most powerful entity in Western Europe since the fall of Rome.  It was the idea of private law.   

The Carolingians tried to bury this idea; it was not conducive to empire.  In order to sustain empire, the emperor required the consent of his subjects:

…the ruler who devised a scheme of defence should also be capable of sustaining the morale of his men.

The Carolingians had ever larger borders to defend.  They required new and ever-increasing support from the various kings and lords to make this defense effective.  These kings and lords had to want to support the emperor.  But why did their opinion matter?  Couldn’t the emperor just pass a law, force compliance?

A king could only command his subjects to perform those services to which they had already been liable, and a lord could only expect customary services from his vassals.  He had no right to invent new duties, and his subjects or vassals would not perform them, unless they had voluntarily given their consent.

Law by consent, not by compulsion.

A king who wanted to increase taxation, lengthen army-service, or impose additional duties such as the building and garrisoning of fortresses, had therefore to convince his subjects that it was worth their while to perform these services….

It was a philosophy of law that inherently favored decentralization, as opposed to a common and uniform law which is both necessary and conducive to centralization. 

Consequently everything favoured the rulers of small territories as against the rulers of vast empires.

And somehow this is considered…barbaric…uncivilized…medieval?

One lord with a castle, completely garrisoned, and victualled, was worth twenty emperors who spent their time marching and counter marching from the Rhine to the Pyranees or from the Danube to the Scheldt.

This would seem sufficient enough reason to support the concept of private law based on custom; law that was both old and good.  It is as close to a libertarian theory of law actually put into widespread practice as I have found, sustained over such a long period.

Decentralized law led to decentralized power.  Decentralized power led to small feuds instead of grand battles.

Was the system perfect?  No, but how could any system implemented by man be perfect?  But what if it was this system of law subject to further study and learning – instead of the centralizing Roman law that came both before it and after it? 

The system of decentralized law worked because it was accepted – it is a system that people believed was best.  What if it was this system of law that men kept in their hearts?