Double Aspect

This post, and another one to follow, will be about what one can learn about law from the historian Martyn Rady’s latest book, The Middle Kingdoms: A New History of Central Europe. It is generally a great book, both instructive and readable. Professor Rady’s eye for the astonishing detail and his (often sardonic) wit, which make his earlier The Habsburgs: To Rule the World such a fun read, are still there, but they are not as obvious in The Middle Kingdoms ― partly, I suspect, because of its grander scale and, often, darker subject-matter, and partly, as Professor Rady says, because writing against the backdrop of the Russian invasion of Ukraine (which ― Ukraine, that is ― comes into his narrative at times), he was not in a very amused or amusing mood. But don’t let that deter you. (And if you haven’t read The Habsburgs already, I think starting with The Middle Kingdoms as the main course, and then The Habsburgs as dessert, is the way to go.)

The Middle Kingdoms devotes a lot of attention to law; much more, I think, than your average history book. The forthcoming post will be about the Renaissance and the Enlightenment, because that has interesting implications for some of the contemporary legal debates. (Preview: the phrase “common good” will feature. A lot.) But first, in this post, I cover what Professor Rady says about law in central Europe in the Middle Ages, which were a period of transition what, to H.L.A. Hart anyway, would have been a pre-legal society to one with law that is, in many ways, recognizable to contemporary lawyers, though in key ways it is still, to borrow the title of David Friedman’s book, a legal system very different from ours.

First, some context on where I come to this from. When I was based in New Zealand, I used to teach a seminar on the Rule of Law, one session in which I devoted to a discussion of customary law: mainly Tikanga Maori, but I also drew on a fascinating article by Jeremy Webber, “The Grammar of Customary Law“, which draws connections between Lon Fuller’s work and the legal traditions of some Canadian First Nations. My own takeaway from that class was that the ideas of human dignity ― both as a requirement that people be able to plan their lives by knowing where they stand in relation to the law and as a requirement that they have a say before the law is applied to them ― that feature so prominently in modern Rule of Law scholarship are very much present in customary/Indigenous law, even if it wouldn’t have occurred to the people living this law to put things in quite this way. When Camus has one of his characters say that “the worst torment for a human being is to be judged without law”, he is onto something truly universal.

But the way these values express themselves is, of course, quite different in societies where people live in groups of a couple hundred (at most) and know one another, but also have neither a writing system nor the resources to sustain a whole class of people who devote their lives to the law in one way or another, compared with the large-scale, impersonal, literate, and wealthy societies we are familiar with. Professor Rady, for his part, describes societies in transition from something not unlike, in some key ways, say the one of pre-1840 Maori to the modern world. The Rule of Law is there too ― but what it means is changing.

Professor Rady explains that “[f]or most of the Middle Ages, rulers and councils generally avoided making definitive statements about the law’s content” (104) Rather than anything like binding rules,

Legal judgments and decisions became instead makeshift, designed to meet specific circumstances. General statements about the law’s content were rare and unwelcome, for they imposed obligations that might later prove inconvenient. Rulers were happier to keep matters slippery. As Emperor Henry III observed around 1040: “the law, as is commonly said, has a nose of wax, and the king has a long arm of iron so that he can bend it whichever way he pleases”. (104)

His imperial majesty might as well have been King Rex.

But eventually that stopped working. Not unlike King Rex’s subjects, “by the thirteenth century” those of the Holy Roman Empire “were no longer content to operate in a legal void”. (104) And so

Leading men in the countryside as well as the great men who served in the council demanded guarantees that their rights would not be infringed and that they be put in writing lest they be forgotten—in the expression of the time: ‘mortal memory is short, but letters live on.’ The earliest of these charters of liberty is the so-called Styrian Magna Carta, or Georgenberg Privilege of 1186 (named after its place of issue). In it, Ottakar IV of Styria confirmed that the duchy’s knights had the right to settle disputes in court and not in combat, to leave their wealth to their heirs, and not to be harmed by the conduct of his officials. (105)

The twin Rule of Law ideas of legal certainty and of a procedure for voicing one’s legal claims are right there. And, as Professor Rady explains, these changes, especially the emphasis on ― to borrow Jeremy Waldron’s title ― “the importance of procedure” ― went to “how [written laws] were made”. (106) The idea of participation in law-making ― not democratic participation in the modern sense, to be sure, but the participation of, at least, “the good and the great” in addition to the monarch ― was taking hold. And so

politics was becoming less personal and more organized. Whereas previously everything had hinged on the bond of affection and loyalty between ruler and vassal, diets with their increasingly elaborate procedures turned individual relationships into institutional ones. Despite the conflicts and rivalries that attended their meetings, diets were part of the glue that kept kingdoms and duchies together. (114)

But these diets did not yet produce legislation as we understand it, in no small part because, as English courts remind us when they discuss the Rule of Law, legislation needs courts to which the subject can turn for an autoritative ruling on its interpretation. As Lord Reed says in R (Unison) v Lord Chancellor [2017] UKSC 51, [2020] AC 869,

Courts exist in order to ensure that the laws made by Parliament … are applied and enforced. … In order for the courts to perform that role, people must in principle have unimpeded access to them. Without such access, laws are liable to become a dead letter, the work done by Parliament may be rendered nugatory, and the democratic election of Members of Parliament may become a meaningless charade. [65]

In the 21st century, the idea of laws without institutional machinery for their enforcement is mostly the stuff of scary hypotheticals that judges and academics trot out to push back against ouster clauses or, as in Unison and Trial Lawyers Association of British Columbia v British Columbia (Attorney General), 2014 SCC 59, [2014] 3 SCR 31, excessive fees. In the Middle Ages, it was a reality, to which the legal system adjusted in a way that, as Professor Rady says “will sound very unfamiliar to readers today and even perverse, but it made sense” (114):

Unlike a modern statute, the treaty agreed by ruler and diet did not constitute a set of binding obligations. In order for the contents to be persuasive, they had to be followed and so enter into everyday practice, because only customary law or the law as it was actually observed was considered compelling. (114)

The most basic piece of infrastructure that was missing was the ability to communicate enactments to the subjects

Before the age of printing, all legislation had to be copied out by hand, after which it was sent to the principal churches, cities, and royal officers in the countryside. Sometimes the recipients made distillations which they circulated at a price, but they were equally likely to file their copy away, particularly if the contents were burdensome. So, the majority of subjects had no idea what ruler and diet had settled on. They carried on in their usual manner until compelled to act otherwise, at which point their behaviour conformed to the legislation and so became the custom. (114)

But equally, for most people anyway, lawyers and professional courts were missing too. Instead, outside cities, it fell to local

headmen … to announce judgments given in disputes, since they might provide precedents in similar cases. … The law of the community was expected to conform to traditional norms and so to be customary. But there was always slippage, forgetfulness, and deliberate lapses of memory as communities grappled with unforeseen contingencies and strove for a just outcome. So, the law spoken in village and local courts was in a constant state of renewal. (126)

Eventually this was no longer enough, first “west of the Elbe” (127) and then, “[f]rom the fourteenth to the sixteenth century, other communities across a wide swathe of Central Europe”. (128) The fixation need not be, at first at least, into written form. This “[i]n Frisia”, custom was

first committed to alliterative and repetitive verse by poets who doubled up as authorities in the law in court sessions. … When later put into writing, the texts of the law betray their origins in versified speech—hence one Frisian definition of paralysis caused by a blow to the body: that the victim “cannot be in bath or in bed, on cob or on cart, on pathway or pond, or on slippery ice, in his house or in God’s house, at his hearthside or at his wife’s side”. (127)

In cities, things were changing more, and faster. Unsurprisingly given the greater wealth ― and the more complicated commercial relationships that were both generating this wealth and enabled by it ― legal professionals and institutions were appearing. Still, the cost of this legal infrastructure was too much for most, even those that needed it. To adapt,

cities across Central Europe gathered together in legal unions. They borrowed codes of law from one another and adopted them either fully or in part as their own. The law of Lübeck was the most widespread and covered most aspects of city life, from the form of government to inheritance, weights, measures, and tolls. It was used by about a hundred cities, mostly on the Baltic shore as far east as Tallinn (formerly Reval, now the capital of Estonia) and Novgorod in Russia. The law of Magdeburg was also widespread, embraced by about eighty cities in the empire, as well as influencing urban law in Poland, Hungary, and Transylvania. Even distant Kyiv adopted it in the 1490s. (118)

In addition,

when city magistrates confronted controversial or difficult cases, they might seek the advice of the mother city from which they had borrowed their laws. Either the council of the mother city or, more usually, a bank of experts attached to the council (called Schöffen, or assessors) examined the case and gave an opinion, usually in the presence of the magistrates of the daughter city and the parties to the suit. (118)

These Schöffen could also assist in difficult cases heard in local courts.

So there you have it: a transition, in fits and starts, and not everywhere all at once, from a world of customary law disrupted or supplemented by ad hoc decrees from rulers to one where the law is more fixed and more written, more procedural and eventually more professional. From one where people used to what we now call indigenous legal systems might feel comparatively at home to one the one we can begin to recognize, albeit, still, with important differences ― not least, the intriguing idea of importing legal systems and indeed legal professionals as a matter of commercial or civic convenience rather than, what is more familiar to us, colonial sovereignty. (That said, the retention of links to the English legal system by former colonies and dominions arguably follows that model.) But, throughout, recognisable ― and increasingly articulate ― concerns about what we now call the Rule of Law.

It is easy to think of customary and modern legal systems as wholly different, unconnected. Professor Rady shows that this is not so. The modern legal system does not come from nowhere, and nor are what we now refer to as indigenous legal systems so different from what once existed in Europe. (Whether people take this purported difference as a sign of backwardness, as they once did, or of some kind of superior insight and moral authority, as many now seem to, is beside the point. Both are wrong.) There were connecting stages and through-lines between these two worlds, if only we know where to look for them. The Middle Kingdoms is a good place to start.