2.History of EU Law




European Union Law: Introduction to the EU and EU Legal Research

The Triumph of Intermediary Communities: The Completeness of the Community and the Incompleteness of the Individual

This early medieval world – populated by very few inhabitants, scored with perennial political and social disorder, gnawed at by the constant pangs of hunger, lorded over by untamed nature, and afflicted, as we have seen, by a deep-seated lack of faith in the collective – could not help but have a profound effect at an anthropological level, that is to say on the position and role of mankind in the physical and historical world. One can, therefore, observe the medieval individual’s lack of self-sufficiency and his natural imperfection, his need to bury himself in the bosom of a hospitable and protective community. In a confused and conflict-ridden social reality which lacks the reassurance of a complete political power, the individual has no means of existing peacefully. He will gain it, as we shall see, only with the advent of modernity, when state and individual lives in an arrangement of perfect symbiosis and reciprocity.

In the historical context that we are examining here, the incompleteness of power brings with it two consequences that are tightly interlinked. The first is the proliferation of social intermediaries, communitarian groups which take the form of replacements for a supreme power that is absent or deficient. These social intermediaries are necessary organizations in a political reality which lacks solidarity and is therefore incapable of maintaining social equilibrium. The second consequence is that the social intermediaries function as refuges which allow the individual human subject to thrive and to enjoy at least a measure of representation.

Assuming he survives at all, the individual survives as a socius (‘member’ of a society), not as a singulus (‘individual’); he is a part of a community and not alone being, defenceless and fragile like an ant outside its anthill or a bee far from its hive. The communities of which the medieval individual was a member vary widely: from nuclei of a few families to noble houses, as well as guilds, which could be religious, charitable, professional or micropolitical. The socio-political reality of the Middle Ages was composed of an extremely fragmented complex of communities, a society made up of societies.

This structure would be long-lived and indeed would still be thriving on the eve of the French Revolution. One further consideration should be added: the powerful influence of that perennial protagonist in medieval culture, the Church of Rome. The Church as a religious denomination was dominated by the idea of a community of the saved, and by a vision of eternal salvation that was problematic for an individual believer to reach in isolation but more permeable to a community possessed of effective sacramental materials, a situation which cannot but have contributed to the tenacious conception of the individual as incomplete and therefore structurally fragile. The sacraments themselves show us the distinction between the Middle Ages and modernity: the medieval communitarian worldview (extra Ecclesiam nulla salus, ‘no salvation outside the Church’) will be replaced by the sacralizing of the direct dialogue between believer and deity. This shift is the hallmark of the quintessentially modern Protestant Reformation.

The Cultural Void and the Factuality of Law. The Primacy of Natural and Economic Facts. The Primordial Facts – Earth, Blood, Time – as Foundational Forces

The void left by the collapse of the public structures of the Roman empire was filled, albeit only partially, by a form of political power which I have described here as ‘incomplete’. The fall of Rome also had enormous historical significance for the generation and development of law in the new early medieval society. But another void left by the disappearance of the empire also had a great influence on the development of new experiences of the law, and that was the gap left in the cultural sphere.

The refined Graeco-Roman culture of the previous period left only traces in the closed citadels of early medieval monasteries; it did not circulate at all in wider society. Meanwhile, the West at least appears to have forgotten totally the legal thinking of the ancients. This was a proud cultural edifice of the highest sophistication: built up throughout the republic and the dictatorship to fullness in the age of empire, it forged a perfect symbiosis between the philosophical reflections of the Greeks and the demands of the Roman state. Yet Roman legal thinking was lost by the medievals because it was unusable to them and so remained unused. To whom might the theoretical niceties contained in the fifty books of Justinian’s Pandecta, the jewel in the crown of Roman legal scholarship, prove useful? In a socio-economic context like that which took hold from the fourth century on, elegance was not of service; what was needed were tools, albeit rough and uncultured ones, which might help one cope with the gloomy realities of daily life. The greatness of Roman law lay in its academic precision, but the Middle Ages had no space for the deliberations of academics: they sought practical innovations grounded in common sense and pragmatism. Was this an age of darkness? Do the Middle Ages constitute a time of regression unworthy of historical attention? We should beware of measuring the development of society against a single model. The legal historian, casting an unprejudiced eye over the nascent medieval reality, ought instead to recognize the innovations provoked by the loss of the Roman cultural heritage. Deprived of the inheritance of Rome, and of the undoubted cultural riches that might have been derived from that inheritance, a poorer legal culture had to be built out of procedures which could support and govern that poverty unaided.

It was this absence which led to the construction of an original and novel legal system. If I did not know that total annihilation is foreign to history, I would be tempted to underline the originality of medieval legal choices and solutions to the reader by saying that medieval jurists began again from zero. And where should we look to find the measure of this novelty? There is only one response: in the rediscovery of the factuality of law. Factuality is an unfamiliar and somewhat obscure term; all that is clear about it is its derivation from fact. It denotes what happens when the law rediscovers facts in all their force, settles into them and allows itself to be shaped by them, rather than seeking to constrain or alter them. I should make clear that, when I refer to facts, I mean material objects and events, natural features (physical, geological and climatic) and socio-economic phenomena (structures of economic exchange, customs and collective behaviours).

When a legal culture is based on scholarship (like Roman law) or on political authority (like modern legal systems), the risk, or the privilege, depending on one’s point of view, is that the law is envisaged and devised from on high and projected upon the facts of reality, fitting them, or even forcing them, into its vision. In the medieval context exactly the opposite is true; nature and society are left unmuzzled, whilst the law contents itself with a humble normative role.

It is physical nature especially which masters the law. Nature in the medieval period is a looming primordial force – mysterious, yet alive and fertile, and therefore feared and respected. Medieval man expresses fealty to this force by restricting his behaviour in accordance with the rules he believes he can read in the natural world. The era which we are investigating here seeks its underlying inspiration in a deeply-held naturalism: the human dimension is shaped by physical nature, to which it submits docilely. Indeed, so strong is this naturalism as to become a form of primitivism. The characteristic feature of the primitivist consciousness consists in an alignment to the natural world so close that person and nature begin to interpenetrate and the boundaries between the two become blurred, until any possibility of contemplating nature critically and objectively becomes lost. Similarly, the nascent medieval socio-legal culture bears witness to a cosmos in which men and things are seen as mere tiles in a mosaic. At the centre of the cosmos are things, not people, especially that great mother-thing, the Earth: an irresistible reality which entrances the human ants whom it nurtures and sustains, but also binds and governs.

The factuality of law in the Middle Ages is important. We shall see that, during the modern period, there is a largely successful attempt to sterilize facts to make them legally irrelevant until an authoritative figure appropriates them and renders them somehow ‘legal’. In the Middle Ages, facts are already freighted with potential legal implications that await revelation. Three facts in particular play a determining role in the devising of the new legal order: the Earth, blood and time. The Earth, despite its mysterious vastness, is a maternal figure because it is productive and provides subsistence. Blood links human subjects together indivisibly and spreads amongst them their inheritance of virtue and wealth via means that cannot be communicated outwardly. Time is duration but is also the hammering of months and of years that creates, extinguishes and alters.

These three primordial facts have a single anthropological significance: they reduce the contribution of the individual, elevating nature and the group to protagonist status. The Earth is the resource upon which medieval man may draw to avoid hunger using cultivation and production, yet neither of these processes is carried out by individuals but rather by groups – either families or larger units. These groups reproduce themselves vertically in a chain of successor groups, because only collectively could humanity hope to have any success in the attempt to tame such a mysterious and chaotic reality. Blood is understood as a precious signifier of identity in an ever-broadening circle of allegiances that begins with family and ends with natio (‘race’), a greater group of individuals who descend from a single stock to make up a single people. Time is understood as a continuing duration and, as such, can only be manifest in the succession of the generations; the individual is therefore effaced as he becomes a mere point in a line. Like memory, time in the Middle Ages is best conceived of by the collective. We can see therefore how Earth, blood and time all emphasize the incompleteness of the individual with respect to the completeness of the community.

To make the historical meaning of this factuality even clearer to the reader, we should emphasize one final consideration: these facts have an immediate impact on the production of laws, because of the legal implications they carry. We shall deal with the Earth in the next section; for now, let us say a few words on blood and time. Blood unites those who belong to the same race but separates these people inexorably from those whom it excludes. Legally speaking, it therefore unites and divides as well. Shared blood means shared rights; different blood means an absolute division under the law. The law is thus reduced to an accessory to one’s birth. The principle that is at stake here is what legal historians refer to as legal personality – personhood under the law. A venerable legal historiography emphasized the importance of this concept in the medieval period, whilst more recent historiographical studies have tended to reduce its importance in France and in Spain of the period (the Spanish scholars have debated the point particularly ferociously). What is certain is that blood, a primordial fact which distinguishes different races is of the first importance in early medieval lawmaking. This importance can be seen in the Italian peninsula, a veritable patchwork of legal systems from the fifth century on, in the many so-called undertakings at law: the solemn affirmations of the applicability of various legal customs in their specific cases made in front of a judge by parties or defendants. Undertakings at law were common up to the twelfth century in northern Italy, Lombardy and in the Norman realm (central and southern Italy).

Time is a brute fact in the Middle Ages, a continual accumulation of instants, which can impinge upon the legal sphere simply by the fact of its passing, without any contribution from a human will. This is a very different situation from that which obtained under Roman law, where juridical instruments such as statutes of limitations and positive prescriptions allowed the passage of time to play a role in the loss or acquisition of a legal position, but only when allied with human intervention – an attitude of negligence or diligence on the part of the party concerned.






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