The Invention of the State, by Fredric L. Cheyette
Story of how small minority of literate men slowly imposed upon the nonliterate their special [imaginary, abstract, impersonal] ways of thinking about politics and law
Fredric L. Cheyette wrote:
Section I
… We now know much of the history of the words and concepts with which modern discussions of state, law, and politics are carried on. Once believed to be novelties of the sixteenth century, the direct reflection of the assumed changed conditions of political life, these terms in fact have long medieval pedigrees. Common utility was a political argument already used in the twelfth century. Corporate concepts, applied not only to ecclesiastical bodies but also to villages, cities, and kingdoms were being elaborated in the twelfth and thirteenth centuries, Sovereignty was a commonplace of political and legal argument by the turn of the fourteenth century.
For most of these words and concepts, the twelfth and thirteenth centuries seem to have been the great arsenal. What gave this extraordinary inventiveness to these centuries? The answer seems almost automatic: it must have been the rediscovery of Roman Law followed by the rediscovery of Aristotle. And yet the conclusions that medieval professors and politicians drew from both these sources would never have been recognized in antiquity; nor was the system of states that resulted a replay of either the Greek polis or the Roman res publica. Could these texts alone have been the cause of what occurred in the twelfth and thirteenth centuries? One’s readiness to ascribe such effects to them must surely be qualified. Aristotle and the Roman Law seem rather to have been rediscovered within a conceptual world that had already altered fundamentally. And this alteration called forth both the new interest in ancient law and political philosophy and the political inventiveness that followed. When did this change occur and what was its nature?
An older view would have rejected outright the notion that the state was invented afresh in the Middle Ages. For if the history of the centuries between the Carolingian Empire and the rise of Western monarchies was essentially a “battle between the central power and particularism”, as Heinrich Mitteis argued a generation ago, the state in some sense was always there. It had to be neither invented nor reinvented but only brought to fruition from its inchoate germ. It was there in desire, even if the apparatus and, perhaps, the conscious idea itself were wanting. This view was shared by those who imagined the state in its first form as a feudal monarchy emerging from the feudal customs of an earlier age. What existed was potentially a state, a not-yet-state, waiting for the mighty figures of the twelfth and thirteenth centuries to bring it forth. Historians could thus speak easily of the “fragmentation of public powers” in the tenth and eleventh centuries, of the “passing of public powers into private hands when Castellans spread their might across the land”. Such judgments were made all the more easy by the language of the twelfth- and thirteenth-century documents themselves, which spoke often enough of “usurpation” of regalian or ecclesiastical rights, while publicists in France and the Empire laid claim to a strict continuity between Charlemagne and the reigning king or emperor.
We can now see how strongly these historical attitudes of previous generations were shaped by the application of modern legal terms and even more by the imposition of nineteenth-century liberal political ideals to medieval phenomena. As we watch the nation-state gradually fade from its glory as the ultimate goal of all historical experience, we begin to understand that such concepts as “public”, “private”, “central power”, and “particularism” are themselves the value-laden products of historical development and not atemporal categories of human thought. The most basic categories of constitutional and legal history, categories that assume these concepts or their equivalents, in consequence become problematic. They cannot be the starting point for historical analysis or description, because they are themselves history-bound: “public”, “private”, “particularism”, and all the remaining vocabulary of constitutional history, scientific and judgmental, had their particular origins and their particular developments. Their appearance, like the appearance of the state as their summation, was part of a larger process, and they cannot appropriately be used to talk about the world before they appeared, when they did not exist. To ask when the state began is therefore to ask a meaningful and important question.
In 1970 Joseph Strayer answered this question, dating the invention to a full half-millennium, 1100 to 1600, and ascribing it to “the formation of impersonal, relatively permanent political institutions”. These institutions, which could “survive changes in leadership and fluctuations in the degree of cooperation among subgroups,” and which were quite different from the officials who “simply protect the private interests of the wealthy and the powerful,” grew in “prestige and authority” and finally gained “a moral authority to back up [their] structure and [their] theoretical legal supremacy”. The state was thus an invention but a slow one, an accumulation, or even an accretion, of a multitude of changes. …
… And to the extent that these institutions in the Middle Ages were essentially fiscal and judicial, they were the very embodiment of coercive Otherness. They were, furthermore, an Other, an alien being, not just to those whom they taxed and judged: to the degree that they were truly impersonal and relatively permanent, to the degree that they truly survived changes in leadership (and membership), they were also definably something other than the individual persons who temporarily embodied them or filled the posts within them. …
… Strayer would argue, of course, that there is more to the modern state than institutions. There are the attitudes of loyalty, the acceptance of legitimacy, the complex of moral and political judgments that over the centuries the state has gathered around itself. However, as he himself states, these attitudes and ideas have adhered to institutions. His argument thus becomes circular: the modern state was created by institutions which themselves conceptually presupposed the nature of the modern state. How can we escape this circularity? We cannot begin the history of the state with the growth of institutions because that is already within the conceptual world of our own political culture. It is only by transcending that conceptual world that we can observe the state in the process of becoming.
Yet how difficult it has been even for sociologists and anthropologists—those very professionals who make it their task to transcend the narrow bonds of Western concepts—to go beyond the limits of the state, to think away the category of institution. Strayer’s developmental categories are strikingly parallel to the analytical categories with which Max Weber defined the sociological realm of law. “An order will be called law if it is externally guaranteed by the probability that coercion . . . [and a] staff of people holding themselves specially ready for that purpose”. Although Weber extended the notion of “staff” to include the clan and the notion of coercion to include feud, he admitted that these were marginal cases. One is surely justified in believing that institutional officials are peeping out from behind the purposely vague term ‘staff’ (for what otherwise would be marginal about clan enforcement and the feud?). And, indeed, no matter where one turns—to legal anthropology, political anthropology, or philosophy of law—the controlling image of the modern state is often not far, sometimes making primitive peoples lawless by definition and frequently leading to bitter struggles over the definition of fields of ethnological endeavor.
These discussions, of course, will not answer the historical question that I have posed. Conceptually, however, the problem faced by ethnologists seeking the realm of law or political organization in a primitive society is identical to the problem faced by the historian looking for the origins of the modern state. Before the modern state, there must have been something else. What was that something else? How did it turn into what we know? Before there was law in the modern sense, was there something law-like, potentially law, not-yet-law? Before there were institutions in the modern sense, were there forms that were institution-like? Before there was a state, was there an organization of society that was state-like, potentially a state, a not-yet-state? Or … was Europe before the state fundamentally different and thus difficult or impossible to analyze by these terms? This is the path of inquiry we must follow to see the invention of the modern state.
Section II
It is with good reason that those who have written about the theory or history of the state have not tried to define it. The range of its manifestations appears too vast. Behind the idea, however, and above all behind its manifestations as institutionalized social control, permanent and impersonal, lies a small number of fundamental distinctions, so fundamental we tend to take them for granted. One need only enunciate them to recognize immediately their power and importance. They define what we might call the realm of discourse of the modern state.
These distinctions are five:
office/person
the rule of law/the rule of man
public/private
authoritative/nonauthoritative
artifice/naturalness
To these we may add a basic definition, obvious, perhaps, but worth pointing to: law is a set of verbalized rules.
It is difficult for us to imagine a world in which these distinctions did not exist, so readily do they come to our lips when we begin lo talk about law or government. Yet there was an era when a few intellectuals thrust them impetuously into the stream of European thinking about society, its laws, and its organization, and imposed them upon a society that found these distinctions strange, difficult to manipulate, uncertain in their consequences. That era was the late eleventh century. We must now try to enter into the culture that Europeans shared when those distinctions were not yet commonplace.
It was not a state of nature. Europeans lived in a society whose organization may seem excessively simple compared with ours, but it was organized. They shared certain mores, certain patterns of accepted behavior, certain ideals, and a store of acquired techniques. The mores they shared, their patterns of accepted behavior, their ideals and techniques were transmitted orally. Technically speaking, it was not a “primitive” society. It was, however, a nonliterate society dependent essentially on memory for the transmission of all except clerical culture. The term nonliterate rather than preliterate is appropriate because this society contained a small group of people who shared a craft literacy—the clergy. The invention of the state is the story of how this small minority of literate men slowly imposed upon the nonliterate their special ways of thinking about politics and law. …
[MGH: See Clanchy on dating of literacy in medieval Europe]
[MGH: 6 pages skipped here]
The society of the tenth and eleventh centuries … was largely an oral culture, and it lacked the realm of discourse, the set of distinctions, that are the foundation of the modern state. … Did the creation of a dominant Literate culture side-by-side and occasionally in conflict with oral culture lead to the invention of the state?
In some ways, the answer is very easy. Increasing literacy meant improved record keeping and easier transmission of administrative orders and by these means the creation of a more efficient administrative apparatus. The administrative history of the medieval state, however, as I have argued, is not conceivable without the prior invention of a realm of discourse that made something called administration possible and legitimate. Let us therefore return to this oral culture and ask what constraints orality placed on the way men thought about politics, law, and social organization.
Obviously, this society, in order to transmit its mores, its accepted habits, and its ideals from generation to generation, had to rely on the human memory. So ingrained in this culture was the social value of memory that, long after writing became the dominant form of transmission, reliance on memory and oral performance continued to play an important role. Think only of those professorial virtuosi in the thirteenth and fourteenth centuries who committed the entire corpus of Roman Law to memory; or of the continued importance of oral disputation in the medieval schools. Literary scholars in recent years have even found evidence for the continuing literary influence of an oral tradition as late as the sixteenth century and have reminded us that the training of memory was an important part of Renaissance humanistic learning.
What was it, then, that nonliterate people of eleventh- and twelfth-century Europe stored in their memories? In what form was it organized? Undoubtedly, much of it was composed of motor skills—the techniques of the artisan; the way to plough, hoe, sow, and harvest for the peasant; the wielding of sword and lance for the nobleman; spinning and weaving for women of every class. These were learned in games or by working alongside the masters of the craft. Other pieces of knowledge combined motor skills with verbal instructions-one thinks of those folklore jingles that aided the remembrance of time to plant and time to reap or that transmitted peasant medicine from mother to daughter.
But much of the apparatus of society can be transmitted only in verbal form. Ideals of behavior are of this kind, whether etiquette or that vast ground encompassed in our own culture within the bounds of law and politics: the ways property can be transferred, for example, or relations of authority and dependence. These are neither motor skills nor discrete items of information. They “exist” only in so far as they are known—which means, in an oral culture, remembered. They exist only in so far as they can be expressed and remembered by words or by gestures accompanied by words. They are language-bound. It is therefore of considerable importance that, with the exception of an Anglo-Norman work called the Lqcs Ifcurici Prirni, Europe produced no treatises on secular law before the late twelfth century. It is of considerable importance that historians should have difficulty reconstructing the rules of political or legal organization before such treatises appeared. For treatise and rule are special kinds of discourse, special ways of organizing words, Their presence indicates a particular way of thinking about society. Their absence is significant, despite one’s normal hesitance in arguing ex silentio.
Rules were not expressed, and therefore not thought of, in the same way before the twelfth century as they were from that time on. How did people think of them? What was the discourse that contained them? In an oral culture such discourse is created and transmitted under two constraints. First of all, it must be composed orally. Second, it must be memorizable. And the most important parts of that culture, the ideals and habits most necessary for society’s daily functioning, must be memorizable by the average mind. They therefore take particular forms: mnemonic jingles, narratives (often poetic, for the rhythm helps the memory), formulae, and fixed rituals. And so it was in the oral culture of the Middle Ages. Mores, ideals, and the standards, techniques, and instruments of social behavior were expressed, first of all, in oral formulae and gestures that people used, for example, to transfer land or reach agreements to end vendettas. We can occasionally see them vividly in medieval chronicles … They were expressed, secondly, in … the popular literature of the twelfth-century aristocracy-and undoubtedly in much oral literature that has forever disappeared.
These forms of discourse have two qualities that we must insist on. They are narrative. They are exclusively concerned with individuals. To say that twelfth-century vernacular epics were narrative is to insist upon the obvious. It is worth noting, however, that these texts were narrative to their didactic core. They present the audience with ideals and with admonitions to seek those ideals by describing the actions that heroes and villains perform and the consequences of those actions. … The old formulae and gestures that people used in their ordinary transactions were also narratives. They were visible performances. This visibility was their critical quality-public, witnessed. It seems, indeed, that written records of these transactions may have served in some parts of Europe primarily to list the witnesses. …
… The transactions of real life do not pose such difficult problems of literary sensibility and the relationship of literature to life. It was in real life that the obstinate ambiguity of real people and the multiple referents for their actions dominated perceptions.
How were people imagined when they engaged in social action? What did the witnesses see? Did they witness abstract vendors and purchasers, donors and donees? Or did they see particular people, members of particular families, solidarities, neighborhoods, or ecclesiastical groups, individuals embedded in the full complexities of their social relations? The texts of the charters themselves, in the tenth and eleventh centuries as later, would suggest the former. …
… If texts are ambiguous, the consequences of such acts speak with a more straightforward voice. When acts of donation or sale came into dispute, what occurred? Before the late twelfth century, the consequence was most likely to be violence followed by arbitration or compromise, solutions in which two results were important: that both sides agreed and that neither left without compensation. That is to say, disputes were settled, not by considering the parties as vendors and purchasers, donors and recipients, and applying rules appropriate to those categories, but rather by the search for a resolution in which the status and self-esteem of both parties would be saved and a continuing social relationship created or renewed. No differently did men imagine the consequence of oaths of homage and fealty. Far from creating identical obligations on all vassals and lords, in the eleventh century such oaths-even within the confines of a small region-could place one man in the bonds of strictest obedience, while for another it was but the affirmation of a treaty of peace or an obligation of nothing more than the gift of a candle. Oaths and acts were embedded in the totality of the social network; they were indeed expressive of that network. They were the actions of individuals in all their complexity as men of wealth, family, status, friendship, and title.
It was for this reason that most notions of law, ideals of behavior, political rules, and social mores were remembered in the form of statements about particular persons or members of defined social groupings doing things, statements with active verbs in the present or past tense, statements about actions that were visible and had visible consequences. … The right to administer justice in a place would recount what people had done … This was surely the source of the rigorous connection throughout the Middle Ages between deed and right.
We can immediately see the difference between this mode of thinking about laws and mores and our own. Our mode, like that of Greek philosophers after Plato and of European literate intellectuals from the twelfth century on, is dominated by atemporal statements making large use of the copula “to be ”. The entities which this atemporal predicate serves are not individuals but categories. They are statements essentially about invisibles. Because they are about abstract categories, we can test them for logical consistency. Because they are atemporal, we can use a two-hundred-year-old document not only as the foundation but also as a constant referent for our government. For that part of medieval European culture which depended on memory, such categorical thinking, such logical testing, such precise reference to the past would not have been possible. It required that individual rules be formulated in the abstract way we formulate them; but such rules were remembered instead in the form of actions by particular persons or social groups: actions that received praise and thus were to be emulated or actions that brought shame, harm, or vengeance and were thus to be avoided. This is why we have the impression that the people of earlier medieval Europe lived according to a “cake of custom” in which the distinctions we are used to-between law and morality, between private and public rules-were not made. For such distinctions are the very stuff of abstraction.
Section IV
To see people acting as vendors or debtors, rather than as the particular persons we know them to be, or to see them acting as officials, as persons with institutional roles, requires a special and peculiar act of the imagination, one which reduces the individual to a single role specified by a rule or a set or rules. To be a vendor means to have the obligations defined by rules concerning vendors, rules that take nothing into account except for the characteristics that define what a vendor is. Similarly, to be an official is to have the duties and obligations defined by rules concerning that kind of official and to be considered as an official only within the confines of those rules. Whatever lies outside the rules is irrelevant, whether it be status, character, family, or wealth. It is precisely the relation to rules, atemporal and impersonal, that makes these roles themselves permanent, impersonal, and abstract. When we speak of institutions or of political organization distinct from the structure of society, when we speak of a legal order, we assume this act of the imagination.
In the late eleventh century this way of thinking was discovered or rediscovered by clerical polemicists arguing the issues of the lnvestiture Controversy or seeking a compromise to quiet the furies and bring harmony once again to the Church. They discovered it in the very attempt at reform, as they endeavored to impose upon Europe a set of institutions whose justification they found in ancient texts and whose realization required the destruction of the status quo of custom and habit: to impose a literate conception of good order on an oral culture and its own far different way of conceiving of what was proper. The form they gave to their discovery was to distinguish between person and office, artifice and naturalness, authoritative and nonauthoritative, the rule of law and the rule of man. The distinction between public and private came soon after. Before a generation had passed, a Bolognese monk began to elaborate the law of the Church as a consciously constructed system of verbalized rules. These clerical intellectuals had invented the world of discourse of the modern state.
[MGH: 4 pages omitted here about the church and especially Pope Gregory VII]
… The reformers’ insistence on the ritual of consecration and the inner dwelling of the Holy Spirit was, of course, deeply dependent upon a thousand-year-old literate tradition. Yet in their insistence on character rather than on rules as the source of power, in their insistence on transformation of persons and property by the ritual of consecration, the arguments of Gregory, Humbert, and their fellows were perfectly congruent with the political conceptions of the nonliterate world around them. Though the reformers laid claim to a literate tradition, the conceptual world within which they placed their texts, the basic structure of their argument was no different from those who likewise imagined power to be the effluence of personality and the totality of relations within which men were placed.
… What was required was for men to visualize these texts as a coherent system of rules, or potentially such a system, and to agree that it defined the powers and rights of clergy and the nature of ecclesiastical property. That is, they had to see office and property not as having character but as impersonal and abstract because derived from an impersonal and abstract body of rules. It would take a lengthy investigation of the corpus of late-eleventh-century polemics to discover by what stages and in what minds this new conceptual world appeared. Since the early reformers’ insistence on consecration allowed no compromise in the conflict with secular rulers and the possessors of private churches, no compromise would have been possible without this act of imagination. It is in the work of one of the early moderates within the reform movement that we can see it already accomplished.
[MGH: 3 more pages skipped]
… Law and the state were from the very first an instrument to combat what we might call “habit” and “custom”, an abstract, impersonal, literate structure of coercive force. The Gregorian reformers appealed beyond what men remembered to rules preserved in writing, rules with atemporal force, abstracted from the immediacy of daily life, from the obstinate opacity, the multiple referents, of individual lived experiences. By this act they forced themselves and all those who followed in their footsteps—first their opponents, then the dominant literate intellectual tradition—onto the abstract plane where dwells the state.
… Across the Channel the compiler of the Laws of Henry I, a contemporary … wrote: “There is so much perversity in human affairs and so much profusion of evil that the precise truth of the law can rarely be found, and he who does most harm to most people is valued the most highly … These processes and the quite unpredictable hazard of the courts seem rather things to be avoided”. Such doubts took long to pass. The process by which the concepts of literate law passed into the habits of European peoples was a long one. In many ways it is still going on.
Yet so long have we dwelled on the abstract plane of the state under the rule of verbalized rules, that we now find it difficult to imagine mankind ever having dwelt elsewhere. I suspect, however, that even today, in the ceaseless flow of lived experience, we still, lawyers and laymen alike, in fact learn and remember many of our mores, our ideals, and our social behavior in the same mode as did men living in the oral tradition of the Middle Ages. Perhaps this is why so many of those problems first posed in the great medieval awakening after 1050 are still with us nine hundred years later.
The Source:
Fredric L. Cheyette, ‘The Invention of the State’, in B. K. Lackner and K. R. Philp (eds), Essays on Medieval Civilization, University of Texas Press 1978
Evolutions of social order from the earliest humans to the present day and future machine age.