The Medieval Origins of the “Rule of Law”: Pacts as a Legal Restraint on Territorial Monarchy
The great kings of the late medieval era had much more power than the feudal kings of the early medieval period, but less than modern states’ heads of government. Firstly because, at least initially, when crowned they had to formally defer to the Church, represented by the papacy.
As God’s representatives they were not able to create law, but were to limit themselves to protecting the divine order. At most, they were able to “confirm” the law, but never to create it ex novo. The monarch in the medieval period was essentially a roi justicier (Desrayaud 1996, 237)”,[313] meaning the king was a dispenser of justice.Moreover, within the scope of government, a function assigned to the executive branch today, late medieval kings could not make major decisions alone, but had to have backing from their kingdoms’ representatives. In the early Middle Ages, kings only needed to consult the nobles and bishops assembled in the royal court (curia). Beginning in the Late Middle Ages, kings were also compelled to consult representatives of the cities. In fact, the most important decisions had to be settled via pacts reached with the representatives of various institutions and social groups (nobility, clergy and urban leaders). In Spanish legal historiography, this monarchical model has been aptly termed “pactista” (pact-based) as it is rooted in the principle that the king’s decisions must be endorsed by his subjects (Bisson 2003a, b, 141-142). Thus, in this class of monarchy sovereigns were compelled to respect a traditional order and vow to obey its laws, in return for which their subjects took the corresponding oath of allegiance and obedience.[314] This obligation was assigned particular importance in some kingdoms, as in the case of the Crown of Aragon, beginning in 1286 (Palacios Martin 1975, 178).
It is commonplace to envision medieval kings as absolute monarchs. This notion, however, could not be more inaccurate, as in reality they were bound to adhere to a whole series of external and internal legal limits which restricted their authority and ability to act.[315]
8.4.1 The Nobility's Resistance to Losing Its Political Power
The emergence of the “administrative monarchy” did not spell the end of the feudal order. In fact, the nobility struggled to maintain its political influence. Such was the case, for example, in England when the nobles imposed the Magna Carta (1215) on John Lackland; or when they rebelled against Henry III.[316] Meanwhile, the Peers of France refused to submit to the jurisdiction of the Parlement of Paris, as they aspired to be judged by their peers (cour des pairs), as was the practice in the old days of the curia regis. In Aragon, Valencia and Catalonia, nobles grouped into uniones (unions) and managed to seize upon moments when the king was weak, seriously curbing the powers of Peter III and Alfonso III, in the last third of the thirteenth century. Finally, in Castile the nobility imposed its political hegemony upon the kings in the first two thirds of the fifteenth century, during the reigns of John II and Henry IV. It would not be until the reign of Ferdinand and Isabella (1474-1504), that the monarchy would regain its supremacy.
8.4.2 Urban Autonomy
If the Romans’ development of their municipal network was one of the instruments which most effectively assured their expansion all over the Mediterranean, in the early Middle Ages, cities virtually disappeared as entities enjoying political and legal autonomy. However, because of the urban renaissance which Europe saw in the eleventh century, cities regained undeniable political importance—particularly those which received privileges consolidating their legal autonomy,[317] as was the case in the Iberian Peninsula, Germany, northern Italy and Flanders.
In England, the centralism imposed by the monarchy since the days of William the Conqueror in the second half of the eleventh century prevented cities from attaining full political autonomy.In the Iberian Peninsula, two situations must be distinguished. In its western region, municipal autonomy appeared in borderlands as a result of the Reconquest, when the monarchs or corresponding repopulation authority granted fueros— charters grating special political privileges and authorities—to “resettle” the territories taken from the Muslims and assure that they would remain in Christian hands (Garcia de Valdeavellano 1986, 1188-1191). Over time, these cities developed more extensive legal systems retaining these privileges, which afforded them considerable autonomy.[318] In contrast, in the eastern part of the Peninsula the emergence of urban privileges (costums) came later, spawned by the rise of a bourgeoisie rebelling against the feudal nobility, which until then had been dominant. This type of municipal rights arose especially in Catalonia, the only territory in Spain in which feudalism fully triumphed[319] [320] (Hughes 2011, 93-125).
Something very different happened in northern Italy, without any doubt the most urbanized area in Europe in the Late Middle Ages, as it featured cities with populations of over 100,000, which were practically independent, having managed to exploit the struggles between popes and emperors. Thus, appeared urban republics with their own autonomous governments and legal systems based on lengthy documents called “statutes” that, in a way, functioned on a local level very much like the constitutions of contemporary states. However, the absence of a strong power generated permanent internal strife between families grappling for control of city governments, and wars with other cities, which in some cases led to the formation of leagues, as cities conducted independent relations with other cities, whether to negotiate agreements over issues such as boundaries or coinage, or to pursue expansion through warfare (Waley and Dean 2010, 8-9).
It is, therefore, not surprising that it was in late medieval Italy where a relatively democratic political system arose for the first time in European history. In were cities such as Florence and Siena, where in the fourteenth and fifteenth centuries important decisions were not made unilaterally by municipal magistrates, but rather by assemblies of citizens. This was possible because they were organized into neighborhoods and perfectly structured guilds, which in some cases were headed up by leaders known as capitani del popolo3In Germany, the emperor’s power waned while the territorial princes’ power grew as they exploited imperial weakness to consolidate the feudal system, initially allowing merchants to form a union to protect their interests and, eventually, permitting cities like Lubeck and Bremen to form urban leagues, which not only protected the interests of German merchants abroad, but become great powers in northern Europe (Dollinger 1970, 62).
In France, the municipal movement’s consolidation was inversely proportional to the political strengthening of the monarchy. Though initially the crown’s weakness allowed some cities to achieve significant autonomy, as of the late thirteenth century, the strengthening of royal authority served to quash municipal power. In some cases the kings did not hesitate to subjugate rebellious cities by force of arms, as occurred, for example, in the revolt of Etienne Marcel, the leader of Paris’s merchants, who was killed in 1358.[321]
In Flanders exceptional urban growth was the result of both great economic prosperity and the weakness of the Germanic Empire, to which the territory was theoretically subject. In the mid fourteenth century, under the leadership of Captain Van Artevelde of Ghent, Ghent, Bruges and Ypres managed to become true citystates (Caenegem 1995, 79). However, the political savvy of the Dukes of Burgundy allowed them to reassert their authority. Only Ghent rebelled, successively, against Philip the Good of Burgundy, Charles V and Philip II, who finally subjugated the city in 1584.
8.5