The Rise of the Sovereign State
The first myth one has to debunk in order to assess the relationship between the provision of law and order and the rise of the (modern) State is that this political institution is merely a natural and organic outgrowth of political power, as old as the history of mankind or of organized society. Actually, it would be wise to dispose of the qualifier “modern”: only the State is modern.1 Whether we see its cradle in the Italian system of States after the Peace of Lodi (1454), or in western Europe (Spain, France, and England) in the 1600s, one thing is clear: the State “gradually emerged in the course of the fifteenth and sixteenth centuries and found its first mature form in the seventeenth.”2
After a summary of the chief traits of the State—organization, sovereignty, coercive control of the population, centralization, etc.—Gianfranco Poggi affirms: “strictly speaking the adjective ‘modern’ is pleonastic. For the set of features listed above is not found in any large-scale political entities rather than those which began to develop in the early-modern phase of European history.”3
Oakeshott seemed to be conscious of this peculiarity of the State when he affirmed that
[t]he somewhat novel association of human beings which came to be called the states of modern Europe emerged slowly, prefigured in earlier European history, but not without some dramatic passages in their emergence … for the most part, the territories of modern states were newly delineated. They were the outcome of movements of consolidation in which local independencies were destroyed and movements of disintegration in which states emerged from the break-up of medieval realms and empires.4
The second myth we must dispose of is the belief, shared by most historians, that the rise of the State contributed to the general cause of human liberty. In other words, that it has been a “progressive factor” in the history of mankind. Instead, it must be seen as a revolution that upset the old order, granting privileges, immunities, and rents to some and obliterating them for the rest of society. As Charles Tilly put it,
the European State-makers engaged in the work of combining, consolidating, neutralizing, manipulating a tough, complicated, and well-set web of political relations…. They had to tear or dissolve large parts of the web, and to face furious resistance as they did so.5
The history of liberty is rather to be found in the attempts to restrain the powers of the State, from the fight to preserve “medieval freedoms” and community privileges, to the struggle against the concentrations of power in a given center (whether a king or a parliament).
Liberty, as well as law and order, was secured, and in some cases much better, at different stages of European history, when a monopoly of violence over a given territory was simply out of reach. Although we are primarily concerned here with the State provision of law and order, one must not forget that the self-governing communities of the Middle Ages, in northern Italy and central Europe, offer significant examples of a completely different way of guaranteeing peace and security.
In the golden age of communal liberty (which lasted in most parts of Europe until the sixteenth century, but in certain areas, like Switzerland, much longer), merchants and citizens formed their own statutes regulating passage, immigration, and exchange: in short everything related to peaceful and noncoercive self-government. During these times, there was no clear-cut definition of power over a given territory, as there were no borders in the modern sense. An institutionalized power always had an antagonistic counterpower claiming allegiance from the same subjects. The result was that every medieval command was actually nothing more than a claim, subject to be opposed and constrained by an institutional network of competing counterclaims.
In Freedom and the Law, Bruno Leoni stated that
an early medieval version of the principle, “no taxation without representation,” was intended as “no taxation without the consent of the individual taxed,” and we are told that in 1221, the Bishop of Winchester, “summoned to consent to a scutage tax, refused to pay, after the council had made the grant, on the ground that he dissented, and the Exchequer upheld his plea.” We know also from the German scholar, Gierke, that in the more or less “representative” assemblies held among German tribes according to Germanic law, “unanimity was requisite” although a minority could be compelled to give way.6
It was not only what has been simplistically called “medieval pluralism” that guaranteed the impossibility of any state-like organizations, but rather the forms of the juridical relations between individuals and rulers. In medieval society the lives and properties were not readily “accessible” to the king and nobles. As Charles H. McIlwain pointed out:
This property which a subject had of legal right in the integrity of his personal status, and the enjoyment of his lands and goods, was normally beyond the reach and cont
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