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Journal of Interdisciplinary History 34.1 (2003) 68-69



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Medieval Law and the Foundations of the State. By Alan Harding (New York, Oxford University Press, 2002) 392pp. $65.00

The dictum, "with law shall our land be built," enunciated in the thirteenth-century Islandic Njal's Saga and echoed throughout medieval Scandinavian legal compilations, is the underlying theme of this study of the role of law in the formation of the medieval state. The "state" in this context is taken in two senses: ruler or regime and realm or commonwealth. Harding limits himself to France and England, two countries that were large enough to demand, but small enough to make possible, a centralized administration. Germany is treated only tangentially.

The argument of the book proceeds chronologically, beginning with the Frankish and Anglo-Saxon courts that protected property and persons but were subsequently dispersed among local lords and towns during the "feudal age." The resulting rise in violence was counteracted by associations for the "peace of God," which had greatest influence in the German empire. The chief impetus for the formation of the state, however, came from the judicial systems of France and England during the high Middle Ages. The French kings deployed their baillis and urban communes to settle disputes, and the English kings expected their sheriffs and itinerant justices to protect property.

By the thirteenth century, these royal agents became so efficient that traveling inspectors and general ordinances were necessary to curb their excesses. The monarchs created centralized parlements / parliaments to provide broader access to royal justice, and the proliferation of law codes (from Ranulf de Glanvill to Philippe de Beaumanoir) publicized the terms of justice. At each stage of development, the French and English monarchs distinguished between the "state of the king" and the "state of the realm."

Arriving at the late Middle Ages, Harding switches genres of source material. Except for the deposition of Richard II, he abandons legal practice and governmental institutions for political theory. Beginning with Thomas Aquinas and Giles of Rome, he passes through the entire galaxy of theorists who speculated on the nature of the monarchical state. In his discussion of John Fortescue and Jean Bodin as representatives of the early modern period, Harding measures the influence of the medieval division between the two kinds of state on the early modern thinkers and concludes that the modern state perpetuates an unresolvable tension between the spheres of government and people. [End Page 68]

Harding's is comparative history in its most traditional form, a veritable histoire comparée du droit et des institutions. Both in sources and subject the terrain has been traversed many times since the nineteenth century. Eschewing theory formation himself, Harding implicitly adopts the methodologies of his predecessors—for example, the functionalism of Weber and the comparativism of Mitteis and Petit-Dutaillis. 1 His work fits comfortably into the constitutional and legal histories of a former generation. Although he likewise avoids teleology, Harding cannot resist noting the passage from the medieval to the modern state.

The great merit of his study is the manner in which he personally works through the original sources, citing them in their original form. He is particularly adept at uncovering the wheels of medieval administration. Although he is well read in the secondary literature, nothing in this book is secondhand. He has ruminated on every text that he cites, and his readings improve upon those of his predecessors. The book may lack novelty or theory, but it is the best comparison of medieval French and English legal and governmental institutions available in any language.

 



John W. Baldwin
Johns Hopkins University

Notes

1. Max Weber, Gesammelte Aufsätze zur wissenschaftslehre (Tübingen, 1951); Heinrich Mitteis, Der Staat des hohen Mittelalters (Weimar, 1955); Charles Petit-Dutaillis, La monarchie féodale en France et en Augleterre (Paris, 1971).

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