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So I’ve just picked up what seems to be a very interesting book – “Kingship and Law” by Fritz Kern (available for download here), who was a German historian working in the first half of the 20th century. The reason why I got interested in this work of his is because Hoppe often references it when he talks about the history of aristocracy, monarchy and democracy, and usually with relative praise.
The book (published in 1939) is a collection and translation (from German to English) of two separate papers published originally at the eve of WWI. The first paper is “The Divine Right of Kings and the Right of Resistance” and the second is “Law and Constitution”. The main objective of Kern’s research is to look into the origins of modern constitutional law in the early middle ages. It is important to note that the book focuses specifically on the early middle ages, to the exclusion of later periods, because the conception of law, constitutional and other, does change quite a bit in the high and late middle ages starting with the twelfth century onward.
I’ve only read through the introduction so far (written by the translator S.B. Chrimes who was a lecturer at the University of Glagow), but there are already a lot of passages worthy of note.
“The early Gennanic kings, however, did not come to the throne through a simple personal right of succession. At best they possessed only a ” privileged throne-worthiness,” in virtue of their descent; election or at least acceptance by the people alone gave them a legal right to the throne (a ius in re as distinct from a mere ius ad rem). Kin-right, not hereditary right, was the Gennanic custom, but it was kinright transmuted by other ideas that was the source of later divine hereditary right. This transmutation was brought about largely by the effect of certain ecclesiastical (nonGermanic) concepts and practices. For one thing, the Church adopted a strongly theocratic view of the royal position, viewing it as an office carrying duties, imposing upon its holder the duty. of acting as the Vicar of God. The Church’s theocratic view of monarchy had little in common with the Germanic notion of monarchy based upon popular election and blood-right, but in time the Church bridged the gulf between the two by its practice of blessing an individual man’s right to rule.”
This is a very important point to keep in mind when considering monarchism as it existed in early medieval Europe. As explained in this quote, the pre-christian Germans, and it is from Germanic law and traditions that constitutional law evolves from (the Anglo-Saxons are also a Germanic peoples) actually had no concept of “divine right”, but instead the king was elected, with the requirement that he is from the family that has a “kin-right” i.e. which is considered noble enough to have a proper claim to the throne. In this way they seem to have subscribed to a form of elective monarchy which is actually seems much more similar to an aristocratic republic, than to an absolute hereditary monarchy of the later 16th and 17th century-kind.
The introduction then goes on to point out that in the early middle-ages it was actually not the King who was considered sovereign, but the customary Law (with a capital ‘L’) to which he was bound, just like everyone else. The traditional customary Law was of supreme importance and even the king could not afford to disobey it, for if he did, his subjects would be justified in overthrowing him.
“The Law was regarded as sovereign, so far as any sovereign existed at all, throughout the early mediaeval period. The State existed for the realization of the Law, and therefore the Law was primary -the State only secondary. The-monarch’s function was to realize the Law in practice, and he was therefore bound to the Law.”
Note the phrase “so far as any sovereign existed at all”, and the absolute primacy that the Law has, even over and above the king. It is no surprise that Hoppe is such a big fan of the early medieval period – it indeed sounds very much like an anarcho-capitalist socio-political arrangement, at least from the legal standpoint.
More on the point about the one Law:
“The deeply-rooted Germanic idea of law was that of the good, old law, unenacted and unwritten, residing in the common sense of justice, the sum total of all the subjective rights of individuals; the king’s right to rule was but his private right, a mere parcel of the law itself. The Church, on the other hand, regarded divine or natural law as the universally obligatory law, and insisted that it was the king’s duty to realize this law in practice, even if it conflicted with the good old customary law. This view sometimes had the highly important effect of releasing the king from the fetters of existent law, but in either sense the king was definitely bound to and limited by a law outside his own will. A legally absolute king, therefore, could not exist, even though some early mediaeval kings at times acted, or seem to have acted absolutely in practice. But in fact a king acted absolutely only if he encroached upon the rights of others (i.e., violated the law) without at the same time acting in accordance with the legal conscience of the community.”
“There was only one kind of law: the Law. […] Ideal and positive law being the same thing, there was only one Law, timeless in quality: the good old law residing in commen conscience and tradition, innovation in which, theoretically, could take the form only of restoration; hew law could never be recognized as such.”
Clearly the early Germanic peoples had a conception of a sort of a natural law, or a customary, traditional law, which was absolute and bounded everyone, including the king. This conception of law, although it sometime conflicted with the divine/natural law of the Church, along with it acted as a very serious constraint upon the power of kings, i.e. centralized state power in general. It is important to note however that the Christian right of resistance, as elaborated by the Church, affected primarily the relationships between Christian subjects and pagan kings, which by church doctrine were considered tyrants by definition. However, the Christian right of resistance, was much more limited when the ruler to be resisted was a Christian one – in that case the subject was much more limited, and the church doctrine definitely prescribed a much higher degree of servility than the Germanic custom did. But more on that later.
This is the crucial point about the Germanic concept of lawful resistance:
“But since it was the right and the duty of everyone to protect the existing law, in particular to protect one’s own personal rights, it was manifestly a right and a duty to resist the king himself if he were to violate that law or those rights. This right to resist, Professor Kern shows, was not based upon a contractual idea. […]The king and the people did not simply co-exist as partners in a private-law contract. On the contrary, both were bound together in and to the objective legal order; both had duties to perform to God and the Law. The right of resistance, therefore, was not primarily the right of a party whose contract has been violated, nor was it even exclusively the subjective right of a citizen against an unjust ruler; principally it was a duty of resistance which the citizen owed to the objective legal order which has been disturbed by the ruler, and which is now to be restored.”
Notice the important difference – resistance is not merely a right of the citizen when the Law has been violated by the king, it is his duty to protect the Law and resist. For if the subject does not resist the king in his unlawful acts and trespasses, he in effect become an accessory to the king’s crime, when he decides to not defend the Law and simply obeys. What a spectacular concept of natural law! Our medieval ancestors it would seem, or at least a substantial enough part of them, were much less servile and much more willing to rebel against the central authority (of the State) than we are!
However, this is what the introduction says about how the kings were finally able to slowly but surely free themselves of these restraints on their power:
“On the one hand, the ancient doctrine of the Church itself, inculcating passive obedience to the powers that be, came to the rescue of monarchy threatened by clerical aggression, and this doctrine, strengthened by others, was to triumph in the long run at the expense of all rights of resistance, ecclesiastical and secular. But for the time being, the notion of the responsibility of all to build the Civitas Dei held the field, and militated against any unconditional respect for authority. The alliance of the clerical right of resistance with the secular was a combination stronger than Germanic monarchy could withstand. and because of that alliance, Gregory VII was able to dare the extremes against the German Emperor.
But almost immediately the excesses of the Church militant reacted in favour of the monarchy. To meet the boundless claims of the Church, royalism broke away from its customary mediaeval moderation, and preached the doctrines of the passive obedience of the subject, and of the irresponsibility of the monarch. The fully-fledged theory of the Divine Right of Kings began to take shape, but this theory was never completed in the mediaeval world; for theoretically the king could not be absolute, being below the law. Nevertheless, if the king were responsible to no earthly court, he was in practice, though limited in certain respects by the law, uncontrolled-and that was substantially the position of the monarch in England as elsewhere at the end of the Middle Ages.”
This is a very important point, which I expect to be more fully elaborated on in the core text itself, but it confirms a suspicion that I have held for quite some time. Namely, that royal power was able to expand itself as a result and through the constant struggles with the Catholic church, which unwillingly gave the European kings their greatest tool in expanding their power – the concept of “Divine Right” of the king who is subordinate to no one except God. As noted in the quote above, divine right allows the king to refuse to be bound by any earthly power or law, claiming to be a direct servant of God accountable only to him. This idea would of course later have a great influence on the development of royal absolutism, and as Chrimes notes at the end of the middle ages such was the situation in England.
All of this eventually led to the development of the ideas and concepts which allowed for the modern State, as it exists and is conceived today, to emerge. Crucially, two very important ideas had to be formed to pave the road for the modern State:
“Two closely connected developments, coming from outside these spheres, were needed before the modern sovereign constitutional State was possible. For one thing, the monarch had to acquire sovereignty by shattering the old mediaeval idea of the ruler being bound to the existent law, which was accomplished by the doctrines of raison d’Etat and necessity of State; for another thing (inseparable from the previous one), the conception of law itself had to be fundamentally modified by the drawing of sharp distinctions between ideal and positive law. The monarch or the State could then become above positive law, whilst remaining below natural law and natural rights.”
The concept of raison d’Etat is traditionally attributed to cardinal Richelieu who came up with the idea of ‘national interest’ on the international political scene in order to justify catholic France supporting protestant German princes. Richelieu also began a comprehensive reform of the French state, which was continued by Mazarin and in its final form completed by Louis XIV made the king’s power absolute. Basically by invoking raison d’Etat kings could disregard customs and traditional laws, whenever they wanted. This approach to politics allowed for the state to become immensely powerful and indeed made France into the strongest and most dominant European state, but everything has its downside. In this case it was the encroachment of state power on the rights and liberties of its subjects.
And the distinction between positive and ideal law is arguably even more important than the idea of raison d’Etat. For it is with this crucial distinction, that positive legislation as ‘lawmaking’ is allowed to slowly develop into the form with which we are familiar today. Chrimes points out that Kern notes in his research that positive legislation has always existed more or less (much less in the early middle-ages of course) in practice, but the ‘laws’ created by it were never considered actual laws in the way the old traditional Law was. And of course it was the old Law which always reigned supreme, and any attempts at lawmaking could never conflict with it. However, when the two were recognized as separate, or more precisely when the positive law was recognized as law as well, but of another type compared to the old, now referred to as ‘ideal’, Law, the way was paved for the development of legislation as we know it today.
Anyways, I am starting to digress. The introduction to “Kingship and Law” seems to offer a relatively comprehensive preview of the main work itself. And if this preview is to be trusted, this book definitely seems to be worth a read if you are interested in medieval European law. And medieval European law is something that I think Neoreaction should be very much interested in, especially when Formalism and Neocameralism are concerned.