Collective Responsibility and Corporate Bodies

As we have seen, historians and neo-institutionalists like Douglass North have claimed that formalized, impersonal collective organization, for instance through corporations, is what spearheaded the West in generat­ing open political orders.

13.3.1 Collective Responsibility, Eastern and Western

A widespread trait of premodern societies, collective responsibility is recorded as an effective means of conflict resolution and social order maintenance even in the smallest communities within and far beyond Europe.^[1432] The system held a broader group (whether kin, village, or administrative unit) responsible for the actions or obligations of an indi­vidual member. Communities showed remarkable capacity to mobilize populations at the local level to get communal work done through this mechanism. As Mancur Olson noted, collective action is easier in small villages.^[1433] Murder and other crimes were policed this way, but so were tax obligations. “Sureties,” whereby either individuals or communities were pledged to fulfill the responsibilities of one person or the whole commu­nity, were pervasive not only in Western Europe, Russia, and the Ottoman Empire, but throughout the premodern world since antiquity, from Egypt and Africa to Japan and China.^[1434]

Part I, however, has shown the striking level of collective responsibility achieved by the English crown in the period of parliamentary emergence.

Petitions, Collective Responsibility, and Representative Practice 289 inform inquests, and so on. Russian scholarship has presented a picture of striking similarity at the micro level, where subject obligations were pervasive, as locals were burdened with a long list of functions, especially in justice enforcement, taxation, and administration.^[1436] Ottoman admin­istration, we will see, also depended on similar mechanisms of enforcement.

However, in Russian scholarship collective responsibility is treated as a symptom of an autocratic, oppressive state that enforced it to create a collectivist mentalite, one that allowed tsarist absolutism to reproduce itself.^[1437] “The principle of collective responsibility emerged as one of the key tools of authoritarian rule... Therein lay one of the keys to explaining how east and west came to diverge.”^[1438] This perspective reflects a dominant narrative of Western development, where collective forms had to be overcome for a more “individualist” frame to emerge.^[1439]

Collective responsibility was indeed widely observed in Russia, as illuminated by the historians Horace Dewey and Ann Kleimola.^[1440] The practice of surety (poruka), of “persons who bore responsibility for the conduct of others,” was an often dreaded but indispensable aspect of social life.^[1441] It made families or communities responsible for serious but also lesser crimes, such as murder or theft: the “surety” would have to pay reparations.

Similarly, collective responsibility remained more local and based on kinship groups throughout the Arabian Peninsula and Ottoman lands, where it prevailed as part of early Islamic custom. It ascribed responsibil­ity to the tribe for actions of its members.⁹³ There was collective respon­sibility for murder or attempted murder. Blood money had to be paid by the murderer’s solidarity group or by the community when the

perpetrator was unknown.^[1444] Collective responsibility also applied to taxation; though records survive mostly from the seventeenth century, its use was long-standing. The kharadj, for instance, was “in general levied not directly upon individual properties but - outside the suburban areas of the cities - collectively upon the villages, according to the amount and state of the cultivated lands there. Hence the shortfall from an individual in no way reduced the obligations of the collectively respon­sible body.”^[1445] Collective responsibility also assisted conflict resolution; however, it was not as effective.^[1446] Nonetheless, especially in provincial towns, “the principle of collective responsibility may have remained a viable tool of social control well until the end of the empire.”^[1447]

At this local level, the similarities with medieval England were striking. Particularly in the period of institutional emergence for the English Parliament, i.e.

All administrative units were subject to collective responsibility of some kind. As Pollock and Maitland wrote:

The county is amerced [i.e. fined] for false judgments, the hundred is fined for murders, the townships are compelled to attend the justices, men are forced into frankpledge, the burghers are jointly and severally liable for the firma burgi, the manorial lord treats his villeins as one responsible group. Men are drilled and

Petitions, Collective Responsibility, and Representative Practice 291 regimented into communities in order that the state may be strong and the land may be at peace. Much of the communal life that we see is not spontaneous.^[1451]

In fact, representation itself was a form of collective responsibility in England, as we have seen: originally an obligation imposed by the king, it bound the community that sent the representative to accept whatever was agreed with the king, on which originally there was little input except from the high nobility.

Frankpledge itself, at least the surety element of it, slowly disappeared by the fourteenth century in England both because it was failing to deliver criminals and enforce the peace and because a better substitute emerged: the centralized system of justice we have sketched in Part I, predicated on crown strength.^[1452] Moreover, this does not mean that collective respon­sibility was itself eliminated; it remained on different types of common duty, from jury duty to the many other obligations that flowed from land ownership or other types of social bonds, but especially judicial liability and parliamentary representation. Responsibility did not decrease; it was just more effectively aggregated by and at the center.

Why was collective responsibility more state-constituted than kin­based in England? The reasons are complex and part of the broader societal transformation of that period. Economists see the trend, one that applied more broadly in Western Europe, as a response to economic forces and trade growth.¹⁰⁴ According to Greif, whose seminal work has done the most to introduce these concepts into economic analysis, col­lective responsibility helped secure contract enforcement under condi­tions of limited government; but it had increased market size so much it was unable to cater to increasing demand.¹⁰⁵ For North and Thomas,

replacing it improved economic efficiency;^[1453] for others, it increased revenue for European states, by undermining spontaneous order institutions.^[1454] These explanations highlight important trends but share a functionalism that has been critiqued in Chapter 2.

The more fundamental reason was the state’s role in restricting collect­ive responsibility and clan and kinship structures more generally. It is not an accident that, as Greif notes, mercantile community responsibility for debt was ended in England in 1275 by the Statute of Westminster, i.e. in the context of the reaffirmation of royal power that led to Parliament. Similar efforts were not as successful in Italy or the Holy Roman Empire.^[1455] The “representatives from the urban commercial sector” in Parliament in the 1290s^[1456] did not suffice to secure this outcome, as we have seen; their power was still very restricted. Rather, community respon­sibility systems were replaced as the alternative royal system of adjudica­tion that was polity-wide and effective created a stable framework of law.

Moreover, contemporaneously, as Greif and Fukuyama have high­lighted, extended kinship (the usual basis of collective responsibility) gave way to the nucleated family in the medieval West.^[1457] But this process was also not spontaneous;^[1458] the state was crucial. Typically, following Max Weber, the explanation focuses on the Church.^[1459] Two sweeping anthropological interpretations explored this. Jack Goody showed how heirship rights were restricted to a smaller circle of relatives through Church legislation.¹¹³ Alan Macfarlane argued that “individualism” rose and the family-based peasant unit declined in the period focused in this account, the thirteenth century.¹¹⁴ One need not accept the strongly materialist hypothesis advanced by Goody - that the Church’s goal was to increase its landholdings - to acknowledge the central insight, that family unit size was reduced and the Church was an important factor.¹¹⁵ As marriage was regulated both by prohibiting close degrees of consanguin­ity and by requiring spouse consent (as opposed to clan elder decision), clan power declined and extended family ties weakened.¹¹⁶ Macfarlane traced similar trends on peasant structures but he viewed them too as endogenous to clan decline.¹¹⁷

Clans were weakened in England (compared to, say, Scotland) from at least the twelfth century. Causality cannot be conclusively established,

Petitions, Collective Responsibility, and Representative Practice 293 however. Maybe kin relations were weaker in England already or maybe the Church was more effective there. Evidence suggests clans were not negligible. English Church reformers in the late eleventh century had prohibited seven degrees of consanguinity in marriage, as opposed to the official four;^[1460] the higher the degree of prohibition, the more the clan weakened. This suggests clans were originally strong.

But without the state, Church rules can rarely acquire polity-wide application. Land inheritance was also enforced through secular courts; royal power ensured that some customs (e.g. primogeniture) prevailed polity-wide whilst others were overridden. Land was increasingly concen­trated as heirs decreased in number, especially through the legal form of entails.^[1461] Such measures defined the family unit ever more restrictively. That the Church alone did not weaken clans is seen by the cases of Italy and Flanders: despite great Church strength, clans remained strong, whilst central powers were weaker.^[1462] Whether Church-inspired prac­tices were enforced by strong secular authorities mattered. Yet even if we accord the Church a central role, this still produces a variant of the central theme pursued throughout this book: it was not a stronger demand for individual rights that distinguished England (or even the West more broadly), it was the more effective subjection of the population to a supra­local set of institutional restrictions, in this case, Church-derived and state-enforced, that accounts for the differences. The demand for rights was endogenous to that compellence.^[1463]

The same inverse relation between clan power and state capacity is observed in Russia. The most powerful elite, the princes and boyars, retained a strong clan structure that made them less amenable to tsarist control, as Kollmann’s study showed.^[1464] In fact, “the only significant limitations on individual property in [pre-Petrine] Russia” admitted by Weickhardt in his reconsideration of property rights “were in favor of the clans rather than the state.”^[1465] Similarly, the mestnichestvo, the system that protected the status of and order of precedence among the boyars, exacerbated natural kin-based rivalries without providing counterbalan­cing incentives to collaboration.¹²⁴ Although, as Kivelson notes, these relations were symbiotic with the tsarist regime and operational¹²⁵ (Russia was indeed becoming a formidable power), the capacity to

transcend communal structures (rather than just to mobilize them) was restricted in Russia as compared to England.

Tsars used collective responsibility to ensure political loyalty in these groups in the fifteenth and sixteenth centuries.^[1466] For historian Richard Hellie, this obligation explained the lack of resistance against the state.^[1467] However, the issue is not collective obligation per se, but that it depended more on pre-existing kin alliances^[1468] rather than state-imposed relations, as it did in England. The system inhibited collective action on a supra­local, bureaucratic level, as it reinforced kin obligations and ties at the family and local level;^[1469] it did not dilute them.

Where developments more closely resembled the English pattern was with the gentry, the lower servitor class, which we saw at the center of Russia’s second-best constitutionalism. Among them, as Kivelson has argued, “clan played a rather insignificant role.”¹³⁰ This group was also more dependent on the tsar. Gentry social relations revolved around the “much closer-knit immediate family,”¹³¹ echoing English developments. Partible inheritance decreased family units making them more dependent on the state, although this system also served gentry interests.¹³² As state control over the gentry rose, its structures of collective responsibility were also gradually extended beyond the family and onto administrative units, “in matters of public safety and criminal persecution, for fiscal dues, but also to deal with vagrant runaways in the seventeenth century.”¹³³

Nonetheless, collective responsibility was not as effectively harnessed by the Russian state at the polity level. Consequently, as noted by Dewey and Kleimola, “the net result of the decline of kinship there was not the emergence of individualism. On the contrary, collective responsibility was extended throughout the fabric of Russian life.” In fact, this explains the paradox noted earlier, between the atomism observed by historians and the extensive collectivist practices: “Collective responsibility became the cement that held an atomized society together in a way that laid the basis for the ascendancy of the all-powerful authoritarian state.” This result is typically attributed “partly to attitudes and values deeply rooted in Russia’s past, partly to the conscious effort of the state, the landowners, and others in authority.”¹³⁴

However, this account suggests the deeper reason was not a polarity of collectivism versus individualism; it was the incapacity of the Russian state to centralize these structures at the supra-local level, across all social groups. Ascribing Russian autocratic outcomes to deeply rooted values

Petitions, Collective Responsibility, and Representative Practice 295 assumes the validity of “revealed preferences”: these often tell us only what actors could do, not necessarily what they wanted, despite ex post rationalizations.

13.3.2 Estates as Corporate Bodies and Corporations

The other major hypothesis that has shaped accounts of both East and West focuses on two other forms of collective organization as central to the Western trajectory: estates organized either as corporate bodies or as legally defined corporations, mostly in the economic realm. Neither of these forms emerged in the non-Western cases. I argue, however, that the stronger this corporative organization, the more representation was undermined. Only where the state was able to effectively regulate and contain it, as in England, did it support representative institutions. So, its absence or weakness elsewhere cannot explain representative divergence.

(a) Estates as Corporate Bodies. Europe is widely held to have diverged because monarchs “in England, France, the Germanies, Poland and Bohemia solved the problem [of co-opting social groups] by sharing sovereignty with parliaments and by giving privileges to corporate estates.”^[1470] An estate is a group of people defined by similar legal status, “to which is attached a bundle of rights and duties, privileges and obliga­tions, legal capacities and incapacities, which are publicly recognized.”^[1471] Corporate estates were highlighted by Max Weber, who connected them to bureaucratic outcomes: the Stdndestaat, the state composed of estates, explained the transition from feudalism to capitalism; but it also provided necessary structures for the emergence of constitutionalism.^[1472] Corporate estates more generally have long formed a central part in historical accounts of representative practice on the European Continent.^[1473] Corporations as a form of associative practice are also increasingly treated in theoretical accounts of political pluralism.¹³⁹

Similarly, estates and corporate bodies with privilege and immunities are integrally connected, in such accounts, with the rise of towns as independent political actors,¹⁴⁰ separated from the feudal countryside and endowed with freedoms as well as legal personhood. Different immunities (of service, taxation, jurisdiction) were constitutive of the new, non-feudal order. Influential theories, as explored in earlier chap­ters, connected the immunities of urban social actors, sometimes allied with a monarchy intent on limiting the feudal aristocracy, with

representative government, following nineteenth-century liberal historiography.^[1474] As Barrington Moore also argued for democracy, the “feudal” immunities of certain groups were central to the right of resist­ance based on a social contract^[1475] and to the concept of autonomy that are critical to some foundational statements in both state and regime 143

emergence.

However, urban immunities and autonomy had an inverse effect on representative emergence at the polity level, as I have argued in Chapter 8, echoing work that emphasizes how urban autonomy inhibits economic growth.^[1476] We need to separate the idea of autonomy from the empirical account of how it was effectively institutionalized in diverse societies. Urban growth was beneficial when the state regulatory framework was strong, as in England.

The role of privilege is also misunderstood. How privileges of estates lead to representation, democracy, even the state, is not sufficiently explained. In some accounts, it was noble privilege that was involved in undercutting absolutism and the old order.^[1477] The nobility actively sought office and service as privileges that increased their social power. Securing office was usually considered to be “in inverse proportion to the power of the Crown” and could be seen as one of the “rights of political participation,” which again exemplifies the assumed genetic connection between privilege and right. Key of course was the “privilege” to attend Parliament as well as to elect deputies to the estates, which was typically tied to property ownership. From the Prussian Junkers to the French noblesse de robe, high office would appear to be the essence of corporative privilege.¹⁴⁶ Constitutionalism spread, in this logic, by extending these entrenched social privileges to broader groups. For Greif, for instance, “political assemblies were composed of individuals and corporate bodies with independent administrative capacity.”¹⁴⁷

In Poggi’s classic sociological account, rights and prerogatives of both the ruler and the Stande were transformed during absolutism. Roman law codifications and bureaucratic “public law” connected the feudal order, the intermediary Standestaat, and finally the constitutional nineteenth­century state.¹⁴⁸ However, that corporate estates developed where con­stitutional democracy later emerged (after many reversals), like France or Germany, does not mean that they caused those outcomes. In fact, where

Petitions, Collective Responsibility, and Representative Practice 297 corporate bodies possessed privileges, the modern representative state (and democratic practices) emerged precariously through either revolu­tion and/or war, as again in France or Germany, precisely to shatter those privileges.¹4⁹ Further, would such a transformation have occurred if England did not already serve as a model (with its own, less radical revolution in the past)? Such accounts describe, but don’t explain, this radical transformation. Rather than a genetic link between privileged estates and constitutionalism, the Continental cases suggest that the more entrenched corporate status and privilege was, the weaker the state, the more coercive the state expansion, and the likelier the absolutism.

What was “distinctively peculiar” to England, by contrast, was that its nobles and all social actors possessed so few corporate privileges. Office and representation were not privileges in the period of parliamentary emergence, but obligations. As Stubbs wrote, “the English law does not regard the man of most ancient and purest descent as entitled thereby to any right or privilege which is not shared by every freeman,” a point examined in Chapter 3. English social classes were thus more open and porous than Continental ones, at least in the early period. The “great peculiarity of the baronial estate in England as compared with the contin­ent, [was] the absence of the idea of caste”: the baronage was not defined by blood.^{[1478] [1479]} There was “no closed or sworn order or fraternity of nobles, and even less of knights.”^[1480] It was a nobility established by the royal summons to Parliament, to which no formal right existed; only custom consolidated the presence of some members of the nobility.^[1481]

The English nobility had fewer privileges, as this book has argued, crucially in its lack of fiscal immunity.^[1482] By being uniformly subjected to taxation, it was not as separated from the rest of society nor did it possess a set of juridically defined privileges (although exceptions existed of course).¹⁵⁴ By contrast, throughout Europe nobilities became increas­ingly exempt from the fourteenth century, either from all or usually from most direct taxes, as we have seen.¹⁵⁵ The greater the corporative privil­ege, the weaker the representative governance: no taxation of the rich, no polity-wide representative governance.

The positive institutional outcomes flowing from weak corporate group- ness are not specific to Europe or to representation. In Africa, the

weakness/absence of group associations, including ones that were neither kin- nor territory-based, meant that political centralization was also stronger, as Osafo and Robinson strikingly highlighted.^[1483] Reconsidering the European model allows us to reassess points of commonality with other regions. In any case, the absence of corporate estates does not suffice to explain the lack of representation in the non-Western cases.

(b) Representation and Corporations. Corporations are the other form of collective organization that was absent in the East but central to the West and seen as constitutive of the liberal political and economic order.^[1484] Might this be related to the absence of representation too? Corporations in fact effectively extended the principle of collective responsibility, which Russian scholars identified with absolutism, as seen. However, imper­sonal corporations are widely assumed to herald an apparently “individu­alist,” “modern” political and economic form, so the connection with collective responsibility does not appear obvious, though it was noted by Greif.^[1485] An account of origins demonstrates how closely enmeshed corporations were with patterns of collective responsibility systematically enforced by the state. Once again, the prevalence of collective responsi­bility cannot suffice to explain the divergent Eastern path on this dimen­sion. The question is rather why collective responsibility transformed into corporative structures in the West but not elsewhere. This cannot be fully answered, but some necessary conditions can be assessed.

Perhaps the main hypothesis ties “the evolution of the western corpor­ation” “to the weakening of central authority following the demise of the western Roman Empire.”¹⁵⁹ Though central authority indeed weakened on the Continent, the most effectively institutionalized version of the economic corporation occurred in England and Holland¹⁶⁰ where central (and taxing) powers were strongest, as we have seen. State power is particularly crucial for perhaps the original form of political corporations, the boroughs¹⁶¹ - these are more relevant to an account of representative institutions. The incorporated English borough was built on state obliga­tion, especially the collective responsibility to collect taxation due to the crown (the firma burgi, the borough tax farm).¹⁶² This institutionalization proceeded from the right to self-taxation to possession of a seal, right to set by-laws, to own land, freedom of serfs, guild liberties, but also to send representatives to Parliament. All these gradually accumulated to provide a corporate legal status to some royal boroughs. But these rights were given by and dependent on the crown. “Every borough in England from

Petitions, Collective Responsibility, and Representative Practice 299 the city of London downwards live[d] in daily peril of forfeiting its charters, of seeing its mercantile privileges annulled, of seeing its elected magistrates displaced and itself handed over to the mercies of some royal custos or firmarius.”^[1486] It was the common subjection to a frame of royal coercion that institutionalized these practices on a systematic basis in England.

Corporations did not enhance representation originally. Borough repre­sentation decreased as Parliament consolidated, from an average of about 85 to about 75 between Edward I and III (out of over 500 boroughs).^[1487] The boroughs were selected typically by the sheriff and were summoned with the counties.^[1488] Given attendance had a high cost, which boroughs had to cover themselves, it was sometimes avoided.^[1489] Similar disincentives were posed by the higher rate of taxation imposed on boroughs compared to the counties: towns overall contributed “the largest proportion” of both direct and indirect taxation.^[1490] “Independence” was costly. Whether boroughs escaped representation at a significant level was a controversial topic among historians, but May McKisack “venture [d] to assert... that towns which lay within great �liberties’ were more likely to escape representation than royal boroughs were.”^[1491] Urban “independence” similarly originally meant the imposition of obligations on the wealthiest families by the Catalan crown.^[1492]

So, although boroughs developed as a form partly through their repre­sentative obligations, it is not also the case that boroughs as corporate units shaped representation originally. Their importance in later accounts of the constitutional structures of England¹⁷⁰ should not be projected to an account of origins. As we have seen, their numbers and status were greatly overshadowed by the knights.

Nor can we claim that corporative structures or guilds were unique to Europe, which might otherwise have explained representative divergence. Civic organization, especially of guilds, was also robust in the Ottoman Empire. As in the West, guild leaders were elected and their position had to be validated through court procedure, they could tax their members,

and could set prices and regulate practice.^[1493] Moreover, Islamic guilds, unlike European ones, seem to have been “a spontaneous development from below, created, not in response to a State need, but to the social requirements of the labouring masses themselves,” and maintaining “either an open hostility to the State, or an attitude of sullen mistrust.”^[1494] That only individuals could be sued suggests they adhered to a system of personal responsibility not the legal fiction of a corporation. But that is not why they never aggregated to a representative system. Rather, Western guilds, as the economic historian Sheilagh Ogilvie has argued, were highly dependent on state power.^[1495] In fact, for historian Patricia Crone, capitalism itself emerged in the West only when the state “drew the teeth of such semi-autonomous groups as exist[ed] within it”;^[1496] the same may be said about representation. In any case, the building blocks of Western constitutional structures seem to be present elsewhere; it is their collective organization that differed.

13.4