Aliens in Medieval Law: The Origins of Modern Citizenship (review)

Aliens in Medieval Law: The Origins of Modern Citizenship. By Keechang Kim (New York, Cambridge University Press, 2000) 250 pp. $64.95

Even for those who do not routinely read medieval English legal history, this is an intriguing book. Although some of the specialized terminology will present difficulties to the uninitiated, the general argument of the book is a relatively simple but important one. Kim argues that the origins of modern citizenship in England, and hence in Europe more broadly, lay in a fundamental shift in the summa divisio personarum, the highest division in terms of personal status, from that between free and servile to that between native and alien. The former distinction, Kim shows, was commonplace under Roman legal arrangements, but declined along with the pax Romana and with the diminishing acceptability of slavery in the West. Ultimately, the shift in the nature of personal status resulted from the growing centrality of the notion "faith and allegiance to our king" as the basis of such status, and thus accompanied the rise of modern notions of sovereignty.

In an unexpected twist toward the end, Kim argues that Jean Bodin decisively promoted the trend toward this way of distinguishing between "them" and "us" in Six livres de la république (Paris, 1576). Bodin's well-known efforts to enhance the power of the sovereign involved, among other things, his arguments for a sharp reversal of the nature of personal status by comparison to that prevailing under Roman law. Under those earlier arrangements, personal liberty was severed from political subjection. In a striking and perhaps perverse innovation, Bodin joined the two, making political subjecthood the condition of personal liberty and creating the notion of rights and responsibilities, which has, at least until the so-called "rights revolution" of recent years, been at the foundation of our modern conception of citizenship.

The necessary middle term was Bodin's elimination of slavery from the determination of personal status. "Slaves were counted for nothing," according to Bodin; otherwise it would have been impossible to determine why they could not be citizens, since they were also subject to the state. As a consequence of this legerdemain, which Kim demonstrates was utterly lacking in support from the relevant legal authorities and which dramatically directed human self-understanding away from the acceptance of slavery, the equality of subjects was promoted at the expense of non-subjects.

In the course of arriving at these conclusions, Kim strongly challenges much of the previous historiography about alien status. He argues, for example, that the important 1351 statute, De natis ultra mare, which regulated the question of inheritance by those who had been "born beyond the sea," has been misunderstood as a law concerning alien status. To the contrary, Kim insists that subsequent interpreters have conflated the question of alienage with that of eligibility to inherit, which was not the same.

This book is going to stir considerable controversy among those to whom it is principally addressed, but the evidence marshaled in support of the claims advanced, deriving chiefly from the statutes and other primary sources, seems compelling. For those less directly concerned with advances in medieval English legal history, the book will stand as a valuable contribution to our understanding of the legal foundations of what Zolberg once called "the naturalization of nativism." ¹ Let us hope that, having examined the legal origins of the alien, Kim carries through on his hint that he must now inquire into the beginnings of subject status, or citizenship.