Why should a scholar of HPE be interested in the medieval period? Many contributions on this site have made powerful cases about the importance of the period. The key benefit, I would argue, is that it addresses many problems of endogeneity that have long affected the analysis of institutions.
For instance, perhaps the leading paradigm in the state-building literature, which includes that of domestic institutional formation and therefore representation, is the fiscal bargaining model. In most of versions of this model, war is an exogenous factor shaping preferences and demand for taxes. Rulers’ need for taxes triggers an exchange, primarily with social elites, that helps build state institutions. This process of centralization typically happens when elites are weak. When explaining representation, however, most versions of the bargaining model assume that elites are powerful enough to extract concessions from the state in exchange for taxes, i.e. that “prospects for state building are. . . greater when rulers are constrained:” from Magna Carta to the motto of “no taxation without representation,” the logic still defines foundational statements in the literature.
This entails a fundamental tension between the requirements of state building (weak elites) and those of limited government (strong elites) that only gets resolved under highly specific conditions. However, this apparent tension, I argue, stems from a misunderstanding of the origins of representation and the role of taxation and state power in its emergence. Simply put, taxation was never regular enough in the early period of institutional emergence to consolidate an institution, let alone an effective system of restraints, because war itself was irregular. In my book, Kings as Judges, I disaggregate the meetings of the English Parliament and the French Estates-General in the period of their formation, and show that tax-related meetings only account for at best a third of the total before 1350 and only 15 percent of the total in the two decades before the Model Parliament of 1295 (Figure 1). This is confirmed in other cases, such as Catalonia and Hungary. In fact, if the English Parliament had had the same regularity as its French counterpart, it would have joined it in remaining an occasional institution that failed to define the regime as “constitutional.”
Justice as the defining omitted variable
If taxation is not sufficient to generate representation, then the bargaining model, which assumes strong elites and a weak state, is also challenged. Exploring why parliament regularized in England but not in France highlights the importance of two other factors instead: state power and the role of justice.
Let’s take justice first. A hint for understanding the greater regularity of the English Parliament is given by the one French institution that vied with it in that dimension: the Paris Parlement. This was a court of justice. In fact, so was the English Parliament: it was the ”High Court of Parliament,” a function that survived until 2009 in the House of Lords. This neglected aspect of the process of state and institution building emerges as key for parliamentary emergence. Unlike taxation, which is a top-down and occasional demand, justice is a bottom-up demand that is universal and regular, even relentless, across social groups. It provides the common thread in the institutional build-up not only of all the Western cases but that of Russia and the Ottoman Empire and beyond.
Where the West and England in particular differed, however, from these “autocratic” cases was not in stronger individual, especially property rights. Rather, it was in the greater capacity to centralize such judicial business in institutions that then provided a ready forum for the occasional taxation to be raised; I call this the process of “functional layering and institutional fusion” of judicial and fiscal practices. This is where parliaments consolidated. Taxation dynamics were endogenous to a prior institutional structure that was shaped by judicial concerns. This was not a sufficient condition but a necessary one.
Rulers could centralize justice (and hence representation) where they could compel social actors, especially the most powerful, to perform judicial service, among many other forms of obligation. Conceiving of representation as an obligation goes against not only common intuitions but also established views in social science. However, as I argued in 2015, medieval practices stemmed from the Roman legal principle of plenipotentiary powers accorded by clients to the lawyers representing them in court (a point now fruitfully explored by some scholars). Whatever decision the representative agreed to in parliament, the local community had to honor. Ironically, it was where rulers were able to impose this strict form of plena potestas, as in England, that representation thrived. Where communities had more power and required that representatives consult with the community before committing (called imperative mandates), as across the Continent, representative institutions ultimately failed to define the regime—they generated what is commonly described as “absolutism.” Imperative mandates are more democratic, of course. In one of those repeated inversions we discover in the study of origins, concepts that are normatively desirable (eg representation as a right) historically originate in the opposite conditions—I call this the “normative/empirical inversion.”
That justice and obligation are crucial is shown in the book through a comparative study of 13 cases (England, France, Castile, Catalonia, Flanders, Holland, the Italian city-states, Hungary, Poland, and, in shorter treatments, Denmark, Sweden, the Holy Roman Empire, and the Swiss Cantons) and the two typical counterfoils to Western “constitutionalism,” Russia and the Ottoman Empire. Only in a few instances do we find the articulated form of parliamentary organization observed in England already by the early 1300s. So in most of the other cases, the logic of the argument applies to sectors of society only. In Castile, for instance, the crown could only compel the towns to submit to royal justice, as the nobility and Church escaped royal jurisdiction typically. Justice was the main business at the Cortes and so it included mainly urban groups. That parliamentary activity has long co-existed with “absolutism” has long been a paradox, but this point solves it. When we talk of Castilian “absolutism,” what we really mean is that the representative regime only encompassed urban groups, whilst leaving vast parts of the territory outside its jurisdiction. It is not that Castile lacked representation or that it was “extractive,” as Acemoglu and Robinson classify them: it is that representation was not polity-wide, as it was in England, and the tax burden was unevenly distributed, since the nobility was exempt. The overall tax burden was far lower in Spain than in “constitutional” countries, as Karaman and Pamuk’s data show. Similarly in absolutist France, the nobility was tax-exempt and the Third Estate included only towns, not the countryside as in England.
“Power over the most powerful”
The most robust representative institution in pre-modern Europe was that of England, but it consolidated, I argue, not because the king was weak and elites were strong, but because English kings had far greater capacity than any other ruler of a major territorial entity: they had “power over the most powerful.” For one thing, English kings could tax their nobility as well as all the subjects under the latter’s immediate jurisdiction, unlike most of their counterparts on the Continent. This is another area where looking at origins uncovers the perils of endogeneity. Post-1650, as Dincecco has strikingly shown, constitutional states like England and Holland had the highest rates of extraction by far in Europe. It might be easy to conclude that the fiscal strength was produced by a parliament now under the control of the people, as North and Weingast argued—a position that confirms the original bargaining model with strong elites and weak rulers.
Yet the period before the emergence of the English parliament in the 1200s illuminates two points: a remarkable pre-existing capacity to extract at levels twice to three times higher than French kings, which I show with the first systematic time-series comparing English and French taxation from 1130 to 1700 (Figure 2); and an equally striking system of courts throughout the realm that applied royal law to almost all land in the kingdom, as it was held as a tenure from the king (commonly known as the Common Law and extensively described in chapters 2 and 3 of my book). As I’ve argued elsewhere (NB: not my title!), we can see both these points illustrated from an incident typically taken to suggest the opposite: Magna Carta. This “concession” by King John followed the highest level of extraction the English nobility had seen. But this in turn was built on the judicial innovations of Henry II (1154-1189) and was followed by the judicial expansion under Henry III (1216-72). Without them, Magna Carta may have been just another charter like the many issued across Europe at the time in regions that failed to develop a “constitutional” regime.
Royal strength as a necessary condition for parliamentary institutions is demonstrated across the 13 cases covered in the book. Quantification is possible only exceptionally, but I measure royal strength systematically across cases through historical assessments of the extent of control over land, of whether land rights were granted conditionally or allodially (with conditionality indicating stronger capacity and enduring dependence on the crown), and of the various forms of extraction and service secured by the crown, especially by the most powerful. For England, for instance, I constructed an original dataset of 317 nobles between 1200 and 1350 with information from the Oxford Dictionary of National Biography, which suggests that the crown confiscated the land of at a minimum 44 percent of nobles, for breaches of the feudal contract before the emergence of parliament, and imposed high levels of debt and service before 1250. Another dataset compares English and French military extraction from 1196 to 1800 (through original data collection from historical sources), showing that England could raise three times per capita the number of troops that France did before 1400.
This line of analysis has crucial implications for many existing theories, such as those that posit parliaments as endogenous to trade and urbanization, themselves the product of “rich soils” and “agriculturally suitable areas,” especially in regions like the Low Countries. Holland is routinely taken as an exemplar of a decentralized, bottom-up urban economy. Yet the role of the count (and bishops) was instrumental in reclaiming the marsh lands and creating the land that enabled agriculture. Moreover, Holland’s precocious finance-raising abilities depended on the count suppressing the nobility’s power to dominate the countryside. This allowed a county-wide system of courts under comital control, which sustained the mortgage market and created systems of collective responsibility across towns that increased their credibility as borrowers. Parliamentary activity and fiscal prowess were endogenous to effective political control.
Alternatively, Kokkonen, Møller, and Sundell find an increase in parliamen- tary frequency during periods when rulers were underage (minorities), i.e. when rulers were weak. Quite apart from the problems inherent in confusing high frequency with a strong parliament (frequent meetings might be held because the parliament will not agree on anything), such arguments neglect the context in which minorities occur. Minorities would not have resulted in enduring representative structures without both the prior and the subsequent consolidation of judicial control and royal power by other kings. Henry III’s minority would not have resulted in the parliament we know were it not for Henry II’s judicial reforms, Henry III’s later judicial battles and Edward’s I consolidation of royal power and judicial practices (Kings as Judges, Ch. 3). Similarly, the meetings in 1214 and after 1276 in the Crown of Aragon under minorities would not have registered as “constitutional” had there not been a precocious build-up of the judicial authority of the king in the periods preceding and after those moments of weakness that I show in my book (Ch. 8). All this activity would have been an abortive moment of assembly activity that did not shape the nature of the regime; such instances were observed throughout Europe in the period. The question is where did they result in an institution that aggregated societal preferences to produce legislation.
In short, the analysis of institutional origins yields insights that forces us to rethink many key causal pathways and to re-assess our understanding of state capacity and state-elite relations.