Communitarian character

Of primary importance in the system of urban law was its communitarian character. Urban law was the law of a close-knit, integrated community -- one that was often called, in fact, a "commune." The community, in turn, was based on a covenant, either express or implied.

Many cities and towns were founded by a solemn collective oath, or series of oaths, made by the entire citizenry to adhere to a charter that had been publicly read aloud to them. The charter was, in one sense, a social contract; it must, indeed, have been one of the principal historical sources from which the modern contract theory of government emerged. The urban charters were not, of course, contracts in the modern sense of a bargained exchange between two parties whereby each agrees to perform discrete acts during a given period of time. Acceptance of the urban charter was rather an avowal of consent to a permanent relationship. Like the feudal contract of vassalage or the marriage contract, it was an agreement to enter into a status, that is, into a relationship whose terms were fixed by law and could not be altered by the will of the parties. In the case of the founding of a city or town, however, the status that was formed was that of a corporation (universitas), under the prevailing Romano- canonical theory that a corporation is a body of people sharing common legal functions and acting as a legal entity. In one sense, therefore, the promulgation and acceptance of the urban charter was not a contract at all but a kind of sacrament; it both symbolized and effectuated the formation of the community and the establishment of the community's law.

The communitarian character of urban law took the form not only of a covenantal relationship but also of a participatory relationship among the members. This participatory relationship was reflected in legal requirements of mutual aid among citizens and mutual protection against strangers and enemies; provisions for exercise of the "common counsel" of the citizenry in consenting to new laws; provisions for common consent to the elections of officials; a system of formal adjudication by fellow citizens ("peers") of the person who claimed vindication of his rights or against whom a claim for vindication of rights had been made by another; a system of informal arbitration of civil disputes, lightly supervised by town authorities; strict regulation of economic activities through guilds of artisans and merchants; and many other provisions for popular participation in the life of the community.

Just as the covenantal aspect of the community should not be understood in terms of contemporary concepts of contract, so its participatory aspect should not be understood in terms of contemporary concepts of democracy. The urban community of the twelfth century was usually governed by a relatively small group of particians. More

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basically, it was not founded on individuals as such but on subordinate communities____________________________________________________ it was a

"community of communities." French social historians have given the name societe des ordres ("society of orders") and German social historians have given the name Standestaat ("state of

estates") to this type of social structure, which they have mistakenly identified solely with the "postfeudal" and "predemocratic" Europe of the sixteenth to eighteenth centuries. In twelfth_ century European cities and towns as well, the "order" or "estate" of which one was a member_______________________________________________________ or, to put it

more simply, one's class (in the non_Marxian sense of that word)____________________________________________________________ formed an important basis of

rights and duties. Thus urban law, while recognizing a certain legal equality of all citizens, rich and poor alike, as citizens, nevertheless did not generally permit the poor to participate in the election of leaders. Further, it recognized the separate legal orders of the various artisans and merchant gui lds, with their glaring inequalities of masters and apprentices. It also assigned separate kinds of rights and duties to various classes of noncitizens, including nobility, clergy, students, Jews, and others. Just as the urban community was part of a large community of communities, a communitas commun itarum, comprising the whole of Western Christendom, so it itself constituted a little community of communities. The individual had no legal existence except as a member of one or more subcommunities within the whole, and his individual freedom consisted primarily in his mobility, that is, his capacity to move from one subcommunity to another or to resort to one in defense against another. In the case of some_Jews, for example_that mobility was extremely limited, although it was not nonexistent; Jews could and often did resort to the crown or the papacy, for example, against measures of oppression taken against them by city governments.

Thus the communitarian character of urban law was itself structured in covenantal, participatory, and class dimensions.

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Source: Berman H.J.. Law and Revolution: The Formation of the Western Legal Tradition. Cambridge, Mass. : Harvard University Press,1983. вЂ” 657 p.. 1983

Communitarian character

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