Medieval Liberties: Contracts, Power, and the Evolution of Rights
Thinking Historically and Civil Liberties
Thinking historically means freedom to place things in history and thus remove them as much as possible from the arbitrary interference of the powers that be. The historicist approach inevitably tends to favor civil liberties, the ‘negative’ freedoms that result in the capacity to act in the absence of constraints or obligations, within a clearly defined and autonomous sphere, especially in relation to political power.
Historicist explanation, from the Middle Ages and the modern age, tends to maintain an open and problematic approach. It does not exhaust the historical time of freedom in the age usually associated with seventeenth-century natural law and absolute states, culminating, after the revolutions and declarations of rights, to eventually extend the structures of the post-revolutionary rule of law.
Medieval Political Power and ‘Imperium’
In medieval European tradition, the necessary limitation of political power is built into the concept of ‘imperium‘.
Imperium can be described as power imposed in disputes as a neutral third party with authority to enforce the sentence, as the power to impose taxes of different kinds, and finally as the power to require the sacrifice of life with the call to arms. This power is split and divided among a large number of subjects along the hierarchy, ranging from the feudal lords of the highest rank to each of the knights, and then to areas of limited and closely circumscribed imperium.
Someone required from birth and condition to be faithful to a particular lord knows that they are compelled to turn to that lord for protection of themselves, their property, and their family.
The contract in the modern sense is missing in these cases, lacking the safety aspect of fixed and determined regulatory compliance.
Medieval Rights and Freedoms: Iura and Libertate
The Middle Ages undoubtedly had its own way to ensure iura and libertate, rights and freedoms. Involuntarium jus was a right that no power could define and systematize in writing.
Throughout Europe, from about the thirteenth century, this complex reality tended to be rationalized to some extent, to be ordered in more vast territorial domains and simplified. Territorial lords put in writing true and proper contracts to regulate standards, including rights and freedoms, in their relations with the estates (organized corporations). These were stronger in the field of feudal power, but also included agents and citizens of the new urban reality that began to emerge, highlighting a shift from the traditionally dominant relations of the Middle Ages.
We cannot speak in this age of participatory political freedoms, also called “positive” freedoms in the modern sense.
Estates and Representation
When representatives of the estates sit together, close to the Lord, they do not represent any “people” or “nation.” In these centuries, there is no collective subject of this genre that might want to be represented. In addition, representatives of the estates are not intended to define the law of the land with the Lord. In the medieval order, neither the Lord nor the estates have the power to define law, since the right is essentially ius involuntarium, which lies in the nature of things and does not depend on any power.
Domination Contracts and Guarantees
Domination contracts serve to reinforce the respective areas of dominance of the Lord and the estates. The Lord, gathering the representatives of the estates, asserts their position as the apex of the political organization of a territory. Those representatives are an institutional reformulation of the old medieval auxilium et consilium, whereby any politically subject person has a duty to faithfully provide advice and assistance to the ruler.
Medieval political relations, generally speaking in modern terms, have more to do with “negative” or civilian freedoms than with “positive” or political ones.
Domination contracts often require the consensus of representative assemblies for the imposition of extraordinary taxes, which exceed the normal revenue that the Lord received as the political vortex of a territory. More generally, they offer various guarantees for the protection of possessions confirmed by time and custom. The estates, now including the growing cities, are more likely, based on the rules laid down in the domination contract, to defend their heritage and areas of dominance, eventually even labeling a lord who violates those rules as a tyrant.
Corporate Rights and the Absence of Individual Liberties
Medieval practice rarely recognized individual iura and libertate. The contrary is a fundamental feature of modern law, starting with revolutionary declarations of rights. Rights and freedoms in the Middle Ages have a corporate structure; they are the heritage of the manor, place, valley, city, village, or community, and therefore belong to individuals only insofar as they are rooted in these lands and communities.
Medieval vs. Modern Freedom
The idea of rights entrenched in history and things, with the consequent unavailability by those who hold political power, is another reading for advocates of the ideology behind the construction of modern law. All this is incompatible with the modern conception of freedom and free expression of will, and “positive” freedom. This dimension of freedom, indispensable in modern law, is irreconcilably opposed to the medieval world. While the medieval world trusts rights and freedoms to the natural order of things historically founded, it prevents men from enjoying the essence of freedom: wanting a different order. It is the lack of this freedom, which at its root is the parent of political, “positive” freedoms.
The English Exception: Continuity of Freedoms
England largely bases its doctrine of historical and political identity on the image of continuity between medieval and modern freedoms. England considers that British constitutional history shows how a gradual and relatively painless transition from the medieval to the modern order of freedom is possible, regardless of the presence of a highly concentrated sovereign political power, able to define areas of authority for individual freedoms, first for subjects and then for citizens.