Why did functional layering occur in the English Parliament but not the French Parlement?

And how was it turned into a productive mechanism enabling institutional consolidation rather than dysfunction? Liberal tradition has emphasized the need for separation of powers, a classical principle that shaped Western constitutional development, whereby judi­cial powers must be distinct from legislative ones.^[300] By contrast, the English common law had no “fear of judicial lawmaking.”^[301] The trajectory of the English Parliament and the French Parlement traces this divergence to its roots and shows how functional layering had constitutional effects.

As the previous chapters showed, where judicial and fiscal concerns were integrated, parliaments became regular. The same conditions solved the nobility’s collective action problem and integrated local structures into central governance, creating territorial anchoring. All these dimen­sions, I argue, are ultimately traceable (though not reducible) to ruler capacity to compel the nobility and broader social groups to perform services. This capacity was relative, not absolute, as English rulers also struggled to enforce their powers. Nevertheless, institutional practice was more integrated and encompassing in England than on the European Continent. Explaining this requires also moving beyond the micro level, where power failures loom large, to a more aggregate picture, where distributional patterns become apparent.

The question - how differential state capacity causes institutional out­comes to diverge - has implications for social theory too. Power was neglected in institutional analysis, as the rational choice emphasis on cooperation and equilibrium^[302] often assumed that change was exogenous,⁴ as did much sociological theory.⁵ Change was thus effectively unexplained, a challenge only gradually addressed in neo-institutionalist economics.^[303] Some institutional accounts, especially those predicated on path-dependency and critical junctures, also assume exogeneity:^[304] once in equilibrium or stable conditions, internal modes of change are weakened.

Power and distributional conflict were re-introduced as themes by Jack Knight,^[305] while historical institutionalists Thelen and Mahoney used both to explain institutional change as endogenous.^[306] In their cases, institutions are typically already formed and binding, providing incentives to “change agents” seeking to appropriate resources. These are usually weaker actors seeking change, confronted with institutional power-holders, and their strategies mostly reflect their cognitive limits and pre-existing rules.^[307]

Institutional origins allow us to further probe the mechanisms of endo­geneity and exogeneity. Periods of origins cannot assume pre-existing structures;^[308] actor power is critical. Power resources shape rule choice itself, even before distributional outcomes can be considered. They do so, however, in a counterintuitive way in this context. Parliaments are typic­ally expected to form where rulers are weak and bureaucratic roles separ­ated and to fail where rulers concentrate different functions. Instead, weak rulers often compensated by selecting rational (in the Weberian sense), proto-bureaucratic procedures, such as separation of powers, as in France, or clear bureaucratic roles, as in the Ottoman Empire - yet in those cases parliaments either failed or never emerged.^[309] Strong rulers, by contrast, often concentrated different functions, as in England, generat­ing more patrimonial yet more integrated institutions - and strong parliaments.¹³ Weber noted the paradox of England also being “the first and most highly developed capitalist country” despite a patrimonial structure. Conversely, he tied a bureaucratic structure to political decen­tralization. But these correlations are typically missed.¹⁴ Bureaucratic structures are today’s desideratum, but constitutionalism sometimes ini­tially consolidated better through patrimonial ones.

Next I show why alternative explanations of variation in institutional fusion are incomplete. The subsequent three sections present the pro­posed explanation, based on ruler power over the most powerful, by examining its observable implications. At the micro level, greater English royal power implies higher noble attendance at Parliament and involvement in petitioning and judicial functions than in France - although we also need to determine if this reflected a crown too weak to resist demands for participation or strong enough to enforce it. At the macro level, strong powers predict greater capacity to impose legal uni­formity. This variation is confirmed by the long-standing literature on the evolution of the two legal systems, common law and civil law, that of Legal Origins. Finally, the explanation is supported by empirical evidence on the precocious mobilization of all subjects for judicial and other duties in England, in the final section. This challenges stereotypes of a “small” English state and establishes the preconditions for the territorial anchor­ing of Parliament in local structures of governance.

3.1