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The State and the Law

Paul Marks has a neat defence of feudal law here, pointing out that under a feudal dispensation the state is bound by and may not change the traditional law.

In some ways concurring with Pauls argument, but coming at it from a different angle, DownsizeDC asks is the state anarchistic?

    • Can The State be ruled or does it merely rule others?
    • Is The State regulated by laws or does it exempt itself from regulation?
    • Can The State be governed or is it impervious to government?

Not sure about the conclusion he comes to. One of my personal aphorisms, invented by me (I think) is – The order that arises from anarchy, as opposed to the chaos that arises from planning. A nice example of the distinction between anarchy and chaos, terms which some people use interchangeably.

Anyway, I think what he describes is chaos, not anarchy.

Tell me what you think.

16 Comments

  1. Single Acts of Tyranny says:

    A very interesting observation, I would perhaps slightly differ in saying ‘attempts to control arise form anarchy’ as opposed to using the word order which is neutral/positive.

    As to the other points, like Lew Rockwell, I think the state is nothing more than a criminal gang. As Tony Soprano rules the Jersey mob, so other criminal gang governments have bosses, but their fundamental nature is unchanged.

    Of course the state exempts itself from the law although it claims not to. Too many examples to quote.

    It’s not a question of governing the state, it suggests the state is a car to be driven. A more accurate metaphor might be the state is the gun pointed at us all. The bosses decide how openly to point the gun, at who and whether to shoot or just threaten.

    The word anarchy has been subverted so people think of socialist worker thugs smashing up McDonalds and calling for more government spending. It seems not to occur to any media types that anarchists would be the last people to call for more government.

    So these days I call myself a voluntaryist. Peace, freedom, prosperity.

  2. CountingCats says:

    SAOT,

    Consider the orderly distribution of goods and services within the anarchic free market, as opposed to the chaotic distribution under a planned economy.

  3. Single Acts of Tyranny says:

    Cats

    Ah yes, I see what you mean, I was looking at it on a more macro level.

  4. Peter Risdon says:

    “In the latter [feudal law] we find another system, similar in many respects to the former [canon law];1 which, although it was originally formed, perhaps, for the necessary defense of a barbarous people against the inroads and invasions of her neighboring nations, yet for the same purposes of tyranny, cruelty, and lust, which had dictated the canon law, it was soon adopted by almost all the princes of Europe, and wrought into the constitutions of their government. It was originally a code of laws for a vast army in a perpetual encampment. The general was invested with the sovereign propriety of all the lands within the territory. Of him, as his servants and vassals, the first rank of his great officers held the lands; and in the same manner the other subordinate officers held of them; and all ranks and degrees held their lands by a variety of duties and services, all tending to bind the chains the faster on every order of mankind. In this manner the common people were held together in herds and clans in a state of servile dependence on their lords, bound, even by the tenure of their lands, to follow them, whenever they commanded, to their wars, and in a state of total ignorance of every thing divine and human, excepting the use of arms and the culture of their lands.”

    John Adams

    I got that while googling for ‘feudal law’ because, other than as a synonym for feudalism, I was aware of no such thing. That remains the case. And far from being immutable, feudalism itself changed from a system of military service in exchange for land holdings for senior barons and a series of reciprocal arrangements from there down the social scale to a system in which payment in lieu of service was perfectly acceptable, according to customs that weren’t fixed – so the baronial revolt over scutage that kicked off the events that led to the imposition of Magna Carta on the King was based on a dispute over whether scutage was an obligation in the event of overseas campaigns. The Barons said it wasn’t, though it had been paid for overseas excursions in the past.

    The only real question about Magna Carta is: did she die in vain?

  5. CountingCats says:

    Peter, in fact I withdraw completely the statement about the law being immutable. Of course it was subject to change. However, it included clear obligations, both down as well as up.

    I wpuld argue, although maybe only in the pub, not in the lecture room, that feudalism died in Europe with the rise of tyrannical government by monarchs. The mirror image of its death in England with power being ceded from the monarch and estates to Parliament.

  6. CountingCats says:

    I think it is true at any level that involves a minimum level of complexity.

  7. Peter Risdon says:

    I don’t understand the affection for feudalism. It treated the vast majority of the population as chattels. Early feudal societies just drove one way and another over the top of ordinary people, transplanting them en masse if it suited overlords. That’s early, idealised feudalism.

    There certainly was reciprocity in feudal relationships and the feudal lord was as bound, in theory, as his inferiors. In practice, though, whoever was most powerful had the upper hand. Fat Capetians got wheeled round the Isle de France while barons marauded; Powerful Capetians dominated the continent.

    I’m glad of the Enlightenment.

  8. NickM says:

    I think we’re all glad of the Enlightenment (the clue is in the name) because otherwise we’d be eating dung and worshiping Prince Chuckles Buggerlugs or some such. And that’s what RAB calls him. We live in a society where I can say rude things about the Royal Family without winding-up in the Tower. Oh, and we have electricity and doctors don’t use on leeches (much) and like trains and ‘planes and stuff. And pictures that move and all the rest.

  9. Single Acts of Tyranny says:

    “We live in a society where I can say rude things about the Royal Family without winding-up in the Tower”

    Are you sure about that? Don’t say it on Twitter and offend someone.

  10. John Galt says:

    Amusing that both leeches and maggots have made a comeback in recent years.

    Leeches are very good for ensuring blood supply is restored in reattached digits, especially thumbs.

    Maggots are very efficient at cleaning and healing wounds and especially ulcers in the elderly. A ‘maggot bandage’ is quite a radical solution in the NHS.

    You couldn’t make it up.

  11. bloke in spain says:

    Was feudalism imposed? I’ve always seen it at the reaction to the fall of the Roman Empire. As the guarantees of the central control disappeared, people looked to local centres of strength for protection. Not only from outside threats but also from each other. There’s a natural inclination to look for someone to arbitrate disputes, preferably being someone who’ll have the muscle to impose the result of the arbitration achieved. The theory of feudalism is the obligations go down as well as up. I give to the baron because the baron ensures I have something to give. I’ve even heard it described as the very first shot at socialism. Of course, peeps will be peeps & put someone in a position of power & they will abuse it. Like representative democracy works so well, doesn’t it?
    “It treated the vast majority of the population as chattels.” There’s not actually much wrong with that. What I own I’m inclined to value. Lets the lord say “See that family in the hovel, there? That’s right, the one with the pretty daughter you’ve hanging over your saddle. Their mine. Keep yer paws off.” Otherwise the weak are pray to any thug comes along. Again, we ain’t much further along now. Conscription, anybody?
    But I’d go with the non-existence of feudal law. The was canon law, with its own courts. That was inherited from Rome & dealt with church matters & was the same from one side of Christianity to the other. Works on the principle Caesar, The Emperor, the Pope, whatever legislative lash-up is operating in Italy this century, gets to tell everyone what to do. But even whilst the Empire was still mostly functional there were Germanic peoples settled within the borders. Invited to on a; you supply some muscle & you can have this land, basis. Act as a buffer against the even worse bunch of vandals been sniffing around. Heinrich & his pals had a whole different idea of law. Precedent. We do this because Dad did it & his father before him. The leader’s only role, apart from being at the front when the arrows are flying, is to arbitrate disputes. But he’s as much subject to the law as anyone else. Common law. And Heinrich wasn’t about to give up his common law on account of a bunch of wops. So you got a compromise.. Roman citizens followed Roman law. Heinrich followed common law. Bunch of lawyers got very fat sorting out the conflicts, which might possibly indicate who thought up the arrangement.
    Run the clock forward to 1066 & you get what the losers call the Norman Invasion. Wm B’stard wouldn’t call it that because he works to precedent. His father’s uncle’s whatever. And for insurance he’s a bit of paper in his pocket from the Pope in Rome, make it all-right under canon law. Divine right of kings etc. Get the Duke aside over a flagon & a wench, no-one listening, he’d tell you he downright stole it. What we do. However the ‘it’ he’s nicked he sees as a bit different than Julius C might have done. Harry’s copped one in the ocular & the theigns are either pushing up daisies or Hereward, So divvying up the spoils is par for the course. But from the new barons unrolling their architects’ castle plans, downwards, the whole kingdom infrastructure works on common law. Apart from church lands which he’s going to treat with caution, not wanting the armies of the entire Holy Roman Empire down round his neck. And the cities, where they’re still running to late Roman Empire regs. Mayors, guilds & that. So he sends the scribes out to compile the Domesday Book. Which is who’s on which bit of land & what are the customary obligations thereto. Where we get the word customs. Because under common law, king or not, if he doesn’t collect those taxes regularly, it’ll no longer be the custom for him to collect them & he’ll lose them. And once his barons get their feet under the table in the new castles it won’t be long before they’ll be regarding themselves as the customary owners, which is what CC refers to above. And heaven help him if he messes with that, because his barons are a bloody sight fonder of the security of their common law than they are of some wide boy from Rheims and’ll get together & introduce him to the sharp end of a sword before they’ll give it up. Runnymede.
    So feudal law, as such, is a bit of an illusion. The common law strand goes back well before & is mostly antagonistic to the pyramidic feudal system. Treats men as equals & the past as sacred. Canon law runs top down & ignores the past. “From this day forth it is hereby decreed…” In practice you get all the fuzzy areas where they’re mixing & pushing into each other’s territory.

  12. Paul Marks says:

    Serfdom is a lot older than Feudalism.

    Many polities bound people to the soil.

    In Rome it was done by Diocletian – under the Roman system the Emperor could make whateverl law he liked. So if he said that the law should “treat the vast majority of the popupation as…..” (as is said above by someone) it did.

    Nor has Feudalism automatically got anything to do with serfdom.

    After all I do not remember many serfs living in Sark under feudalism – a couple of years ago (when Sark was still feudal).

    It is wrong to think of a “system” of feudal law at all.

    Feudal law is really the law of custom and practice – and that can be good or BAD.

    Can it be changed?

    It can – but only at great risk (to the ruler).

    In nations that fully “recieved” Roman law – this is not so.

    As for the “enlightenment”.

    Please rember what this actually was POLITICALLY.

    An end to the old Estates and Paliaments (oh yes they are all “Feudal”") and the rise of the “enlightened” monarch. See M.J. Oakeshott “On the character of a modern European State” in his “On Human Conduct”.

    As UNLIMITED as old Roman Emperor.

    Frederick the Great is the classic example of such an “enlightened” monarch – and any libertarian who likes him (with his state education and endless regulations) needs their head examined.

    But what of France?

    In many ways France of the Ancient Regime was mixed – or “mixed up”.

    Many Kings (noteably Henry IV and Louis XIV) had tried to introduce elements of “elightenment” (i.e. unlimited monarchy).

    But they had not fully succeeded – especially in Western France.

    In Brittany (for example) there was still a functioning “Estates” right up to 1789.

    It is no accident that the centre of resistance to the new “enlightened” rulers was in Western France.

    Remember an “enlightened” ruler can do anything they feel like – that is the whole point of being “enlightened” (throwing off all traditional restraints and insitutions) – a little group in Bavaria were just an extreme example of it.

    John Adams.

    A fine man – but one sided.

    For the other side of Cannon Law see….

    “The Idea of Natural Rights” by Brian Tierney.

    For natural rights – as well as natural law came from that very source (the Roman Catholic Church) that John Adams so despised.

    A highly tainted source to be sure – but this is where (however tainted) that the idea of natural law and natural rights come from.

    “But Paul – natural law was accepted by the Greeks and Romans”.

    But THE OTHER WAY ROUND.

    Roman legal thinkers (from the start – and then via Gaius and, centuries later right to the servants of Justinian) held that natural law existed BUT was trumped by state law.

    The Roman Catholic Church turned all that on its head.

    Natural law and natural rights not only existed but – THEY TRUMPED STATE LAW.

    “Yes but it was a cynical power grab by the Church” – only in part (see Tierney – and Murray Rothbard and others…..).

    All the stuff that John Adams came out with……

    Natural law.

    Natural rights.

    The idea that nature’s law and nature’s God trumped state law…..

    And on and on…..

    It is all from the Schoolmen.

    John Locke himself was a Protestant Scholastic.

    The barons when they defended their customs by appealing to the natural law.

    Whether by Magna Carta or a thousand other declarations all over Europe.

    They may have been as cynical as Hell – defending their Feudal customs by appealing to natural justice (AGAINST the laws of the State).

    But “the mask becomes the face”.

    When men have lost friends (and sons) in battle with the King saying the battle is for ……

    The battle becomes for…….

    Even if they did not believe it at first – they come to believe it.

    The defence of the old customs (such as Parliaments and Estates – not to change the law, but to preseve it).

    The paradox of local custom being defended (defended aginst the state) by appeal to universl justice.

    And statements that were intended just for barons – being applied (by the barons themselves) to all free men.

    To any man who could pick up and use a weapon – in the ancient traditions of the Germanic “free man” (also the basis of Greece and Rome in clasical times).

    And the corrupt and venal Church AT THE SAME TIME standing for the “ancient principles” of the defence of property – AGAINST THE STATE.

    Clergymen who often start off as corrupt – end up dying for their faith, and for the idea that the state is not without limits.

    Such are the principles that we call by the vague name “Feudal”.

    Suffering can destroy people.

    But it can also help them find themselves – even in death.

    It can go either way.

    In France (by the way – only a tiny percentage of the population were serfs in 1789) many a person whose faith had been weak found it in suffering and death.

    Those who survived Revolutionary Justice often wrote of those they had known before the Revolution as cynical timeservers (whether clergy, nobility or THE GREAT MAJORITY ordinary folk) – utterly transformed by suffering and the prospect of certain death. Spending their final hours comforting others – not themselves.

    And showing a courage in death that astonished their enemies.

    It was similar in Castro’s prisons. Such as the “Isle of Pines” – run by my namesake Herman Marks.

    Corrupt or ordinary people came in – and some broke.

    But some became stronger – and stronger (even as their bodies were destroyed).

    Nothing could destroy their spirit (spirit that had been quite ordinary – even corrupt and vile) not sexual assualt, not besitilty (dogs were used) not mutilation….

    Till in the end they died – utterly transformed (but in the way their enemies had intended).

    It was much the same with the “Sacred Blue”

    Once (in the Middle Ages) knights who had sworn (for the sworn word is the true heart of “feudalism” – not serfdom) to not let the King die till the blue sashes they wore had turned red with their own blood.

    By the 18th century such men had become fat and corrupt.

    A dining club – think of the translation of the “sacred blue” in Franch.

    Enlightment (Revolutionary Enlightenment) helped some of them find themselves again.

    But not in the way that is normally thought.

    They found themselves in suffering – and often in death.

    Much as the Wittelsbachs and Hapsburgs did not find themselves as Emperors of Austria (literally wraped in “RED TAPE” – the Hapsburg Empire has endless sorts of tape which was wrapped round documents in their demented bureacracy, the product of “enlightened Princes”, back in the 1700s) or Kings of Bavaria.

    The Wittelsbacks and Hapsburgs found themselves again in the 1930s or 1940s,- risking their lives against the Nazis. Or in the concentration camps (oh yes – some of them went to them).

    It was not in their pomp (in robes and crowns) that they found themselves – it was in a desperate struggle (and sometimes squalid and tormented condition) that they became again what they were supposed to be.

    Christian Knights – defending their honour (judged by the universal law of the universe – that no state law could touch) and defending the weak, even if it meant their own deaths.

    Perhaps only in the face of great evil (whether than of the Jacobins or the Nazis or the Marxists) is it possible for once smug and snobbish people, to become what they should be.

    For what Thomas Hobbes called light is really darkness (it is the darkness of tyranny – of which the “enlightened” tyranny of people like the master of Thomas Hobbes, Francis “The New Atlantis” Bacon, is the worst) – and what he called “The Kingdom of Darkness” is realy light.

    And I am NOT talking about the Catholic Church – or any religion.

    I am talking about people who once may have used traditional custom to selfishly defend their own advantages – and then used univeral principles to defend the local customs (for the same purpose).

    But, somewhere along the way, became what they pretended to be – became what they were supposed to be.

    Defenders of property against the state – “a shepard’s hut as much as a mighty castle” and defenders of the weak (even if it meant their own deaths).

    That the other side of “feudal”.

    Sir Walter Scott made the leap of thought (and of feeling) to understand it.

    The Hapsburg and Wittelsbachs (and so on) were, perhaps without knowing it, playing a familar part.

    The part of “Ivanhoe”.

    Someone whose ideas are based in his own local customs and traditions – but is led by his sense of honour to make them universal, and beyond his own religion.

    Does Ivanhoe “become enlightened” or does he become a far more traditional man than his enemies?

    “Romantic illusion”.

    It is not illusion if real, flesh and blood, people are prepared to die for it.

    And some, when put to the test, have always been prepared to do so.

    Although sometimes not enough.

  13. Paul Marks says:

    By the way…..

    The motto of the SS – “my honour is loyality” is a the ulitmate perversion (inversion) of both.

    Honour is an intensely personal thing – although it also (at the same time) as universal as the stars.

    The SS motto (as Tolkien and others noted) is a denial (a negation) of both the personal and the universal element.

    Indeed it is about as “Feudal” as the Jacobins.

    But it is disguised – disguised with great cleverness.

    In reality it is total slavery to the ultimate “Enlightened Prince” – free of all custom and tradition (and traditional insitutions), and free of all universal principles also.

    Adolf Hitler.

    Someone who has seen a film such as “The Eagle Has Landed” will understand what the honour of a traditional fighting man actually is.

    Including a German one.

    And it is not “fictional”.

    Even if real flesh-and-blood people (women as well as men, and fat actors as well as slim warriors) may sometimes be inspired by stories – stories both modern and ancient.

  14. bloke in spain says:

    Sorry Paul. Are we actually disagreeing here? I say there was a tension between what you call ‘natural justice’ & the concept of absolute State power. You seem to be itemising the tensions. The tension drives most of European history. That’s why I agree with Peter Risdon, the idea of a ‘feudal law’ doesn’t really exist. It’s just the start of that period. Much later the baton of the State passes from the hands of divinely ruling kings to the ‘people’. Same bloody baton though.
    Now, in what seems to be the dying days of European history, I’m living in a land that’s supposedly cowering under the might of the State. You in a land responding to the rights of the individual. Damned if I can detect a difference though. Apart from, on everyday terms, I feel a lot freer here than I did there.
    “Nor has Feudalism automatically got anything to do with serfdom.”
    It’s central to it. The feudal system (very, very much in theory) is a set of obligations run up & down. Why free men wanted to become serfs. Which they did. Exchanged freedom for security. It’s rarely gone away. Most people are serfs now. Huddling round the centres of power & security because it’s lonesome & scary out there, where the free men live.

  15. Paul Marks says:

    Serfdom is not “central” to feudalism. Serdom is being tied to the soil (normally by state decree) and is passed on from parent to child – without any oath or agreement.

    There is feudalism without serfdom – there have been many cases of this.

    And there is serfdom without feudalism. Indeed many ancient societies had it – it was imposed in the Roman case by Diocletian.

    Indeed it could be argued that there is a terrible tension between feudal principles and serfdom. Perhaps the worse case in Western Europe was England (after the Norman Conquest) where as many as 40% of the population may have been reduced to serfdom.

    But it declined, and declined. Partly for financial reasons (especially after the Black Death), partly for MILITARY reasons. Serfs are of no real military value – and every (sane) lord wanted as many good fighting men as he could get (whether to fight in other lands – or as security against other lords, or against the King).

    There were government efforts to impose de facto serfdom as late as the time of the first Elizabeth (Tudor legislation was largely a dead letter because there was no real government stucture to enforce it, as there was elsewhere, – however if Thomas Cromwell, in the time time of Henry VIII, had managed to create the structure he desired…..

    Although a more famous case is that of the “Statute of Labourers” under Edward III – that helps lead to the revolt under Richard II (it is no accident that such a revolt started in Kent – Kent had never had serfdom).

    “Execute the ringleaders – but then quietly forget about trying to establish de facto serfdom” is the normal way with such revolts (at least in this land).

    A central fedual principle is the sworn word – and an oath that is not voluntary is worthless. Nor can someone be born into TRUE loyality.

    Will you really allow a sword to go into your own body rather that the man you are sworn to protect? No? Well you are not of much military value then – you are just going to run away (battle is scary).

    And that is not just a knight – that is any free man. ALL FREE MEN FIGHT – no society in the “Dark Ages” could survive if most people would not fight. Either the Muslims from the south, or the Vikings from the north, or th Magyars from the east, would have utterly overwhelmed them.

    You pledge your life – not for “security” (there is no security in battle – indeed you accept that you may to have to lose your life), but for JUSTICE.

    If the ruler goes against justice – it becomes your duty to fight AGAINST him (for his broken his oath).

    Roman soldiers swore an oath to their Emperor – he did not swear a formal oath. There was no external standard to judge him by.

    However, you are correct that the oath goes two ways – it means obligations on both sides.

    Also it is based on something outside (as well as inside) the people directly involved.

    It is based ideas of justice outside the interests of either person.

    An order that violates this principle, by definition, breaks it.

    “Barbarians” may be utterly vile to other people (that depends on what group of “barbarians” one is talking about), but they respect their own freedoms.

    No Frankish King could treat Franks the way Roman Emperors treated Romans (Charles the Bald tried – and ended up having to do 180).

    Visigoths may have kept the serfdom the Romans established (indeed that may have destroyed Visigothic Spain – it violated the “EVERYBODY FIGHTS” principle which is the only way to hold back Islam), but Visigothic rulers were more limited that Roman Emperors had been.

    And the worst barbarian tribe of all – the Saxons?

    They were most extreme supporters of liberty of all – at least for themselves.

    Including some odd twists – such as the property rights of women. And so on.

    Indeed some of the property law of the Saxons and the Jutes was in force in Kent till – the 1920s (yes I did type – 1920s).

    By the way there are some of these ideas in Roman law – in the early period.

    Even as late as the Institutes of Gaius principles of natural justice can clearly be seen.

    However, the Roman thinkers held that the state positive law could trump these principles (indeed did so automatically).

    That is not how a sincere (and many were sincere) knight thinks.

    Or how a sincere (and many were sincere) priest thinks.

    It is not even how a ordinary freeman thinks. The freemen who flocked to the banner of Henry I after 1100 did so not because he was the oldest son (he was the youngest son), but because he had issued a formal promise to obey the law (no Roman Emperor could do that – indeed such a promise would have been MEANINGLESS as the will of the Emperor was the law) and to uphold the freedom of all free men.

    How sincere such formal declarations were is not the point.

    The point is that such a declaration would have been without meaning in the Roman Empire – or in OUR world.

    “Join me – fight with me”.

    How does that apply in the Roman Empire (or in our world) where the population is unarmed?

    “I will obey the law”.

    Makes no sense when the will of the rulers IS THE LAW (as it is in the Roman Empire – and in our world).

    “Support me in battle – and I will defend your freedom”.

    What freedom would that be?

    Many knights and many priests were corrupt – but what was corruption in the Feudal world, was the normal “right” thing to do in the Roman Empire.

    Or in our world.

    “I will not do this terrible thing, nor will I allow others to do it – I will save these people, I will join with others and FIGHT YOU”.

    This has no legal basis in the Roman world – or in our world.

  16. Paul Marks says:

    Of course “everybody fights” – or, rather, all free men agree to risk their lives in battle (and to train so they may be some use). Was the basic principle of the classical world also – not just the “barbarian” world.

    When Augustus killed it (by forbidding ownership of military weapons and the training with them) he killed the Res-Publica.

    Although the rot has set in with Marius – indeed before.

    Why did fairly small populations of barbarians overwhelm Rome?

    Economic decline (despotism does that) was one reason. The “stagnant Middle Ages” were actually a period of change – of, for example, technological inovation.

    Under the Empire nothing was invented. Why should it be? The Emperor might kill you for inventing something (Tiberious did that to a man who invented shatter resister glass).

    And if you made a lot of money and made yourself really well known – the Emperor might well kill you and steal your stuff.

    All perfectly “legally” (say a treason trial) – and it was the same in “stable” periods in China.

    But back to the end of the Empire.

    Most people who (for example) the “Free Men” (the Franks) faced, had not been free for centuries.

    They were of no military value.

    School textbook “feudalism” is not real feudalism. Any more than the “three field system” (with its strips and so on) is a really a picture of all England (even in its worst periods).

    If a “feudal” society is to survive – then large masses of serfs (as with the late Romans or the Persians) have to go.

    “Everybody fights” has to be restored.

    Otherwise the Muslims from the South, the Vikings from the north, and the Magyars from the east (and on and on) will utterly destroy you.

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