In the three regions of the world I have covered so far, state inst.i.tutions were formed directly out of tribal societies. Early social organization in China, India, and the Middle East was based on agnatic lineages; the state was created to overcome the limitations imposed by tribal-level societies. In each case, state builders had to figure out how to make individuals loyal to the state rather than to their local kin group. Inst.i.tutions based on territory and centralized legal authority had to be layered on top of strongly segmentary societies. The most extreme response to this problem was that of the Arabs and Ottomans, who literally kidnapped children and raised them in artificial households so they would be loyal to the state and not to their kin.
In none of these cases did the top-down state-building effort succeed in abolishing kinship as a basis for local social organization. Indeed, much of the history of inst.i.tutional development in all of these societies revolved around the effort of kin groups to reinsert themselves into politics-what I have labeled repatrimonialization. Thus the impersonal state inst.i.tutions created in the Qin and Former Han dynasties were recaptured by powerful lineages by the time of the collapse of the Later Han Dynasty; these families remained important players in Chinese politics through the Sui and Tang dynasties. Indian polities made much less headway in creating powerful impersonal inst.i.tutions in the first place, and these inst.i.tutions remained largely irrelevant to social life in Indian villages organized around segmentary jatis. The Turkish state was most successful in reducing the influence of tribal organization in its Anatolian and Balkan heartland, but much less so in the more lightly governed Arab provinces. Indeed, the Ottoman state exercised little authority over peripheral Bedouin communities, whose tribal organization remains untouched to the present day. In all of these regions-China, India, and the Middle East-family and kinship remain far stronger today as sources of social organization and ident.i.ty than they do in Europe or North America. There are still full-blown segmentary lineages in Taiwan and southern China, Indian marriages remain more a union of families than of individuals, and tribal affiliations remain omnipresent throughout the Arab Middle East, particularly among people of Bedouin stock.
EUROPEAN EXCEPTIONALISM.
Kinship in Europe a.s.sumed a different shape. In a 1965 article, the demographer John Hajnal noted the striking contrast between marriage patterns in Western Europe and virtually every other part of the world.1 In Western Europe, both men and women tended to marry later, and there was a higher overall degree of individuals who never married. Both of these factors were linked to relatively low crude birth rates. There were also more young women in the labor force, and more equality within households, due to the fact that women, by virtue of their late marriages, had more opportunities to acquire property. This was not simply a contemporary phenomenon; Hajnal dated this pattern back to a period between 1400 and 1650. In Western Europe, both men and women tended to marry later, and there was a higher overall degree of individuals who never married. Both of these factors were linked to relatively low crude birth rates. There were also more young women in the labor force, and more equality within households, due to the fact that women, by virtue of their late marriages, had more opportunities to acquire property. This was not simply a contemporary phenomenon; Hajnal dated this pattern back to a period between 1400 and 1650.
Other important differences between Western Europe and the rest of the world stood out. Local communities organized around tightly bonded kinship groups claiming descent from a common ancestor disappeared from Europe much earlier than is suggested by Hajnal"s dating. Kinship and descent mattered to Europeans, but primarily to kings and aristocrats who had substantial economic resources to pa.s.s on to their children. Yet they were not embedded in a tyranny of cousins the way that Chinese aristocrats were, since the principles of partible inheritance and primogeniture became well established. During medieval times, individual Europeans had much more freedom to dispose of their land and chattels as they saw fit, without having to get permission from a host of kinsmen.
European society was, in other words, individualistic individualistic at a very early point, in the sense that individuals and not their families or kin groups could make important decisions about marriage, property, and other personal issues. Individualism in the family is the foundation of all other individualisms. Individualism did not wait for the emergence of a state declaring the legal rights of individuals and using the weight of its coercive power to enforce those rights. Rather, states were formed on top of societies in which individuals already enjoyed substantial freedom from social obligations to kindreds. In Europe, at a very early point, in the sense that individuals and not their families or kin groups could make important decisions about marriage, property, and other personal issues. Individualism in the family is the foundation of all other individualisms. Individualism did not wait for the emergence of a state declaring the legal rights of individuals and using the weight of its coercive power to enforce those rights. Rather, states were formed on top of societies in which individuals already enjoyed substantial freedom from social obligations to kindreds. In Europe, social development preceded political development social development preceded political development.
But when did the European exit from kinship occur, and what, if not politics, was the driving force behind this change? The answers are that the exit occurred very shortly after the Germanic tribes that overran the Roman Empire were first converted to Christianity, and the agent was the Catholic church.
MARX"S MISTAKE It is clear that all of the component peoples whose descendants const.i.tute modern Europeans were once organized tribally. Their forms of kinship, laws, customs, and religious practices were doc.u.mented, to the extent that records were available, by the great historical anthropologists of the nineteenth century, such as Numa Denis Fustel de Coulanges, Henry Maine,2 Frederick Pollock and Frederic Maitland, Frederick Pollock and Frederic Maitland,3 and Paul Vinogradoff. All of these men were comparativists with a wide range of knowledge of different cultures, and all were struck by the similarities in agnatic kinship organization in societies as widely separated as the Hindus, Greeks, and Germans. and Paul Vinogradoff. All of these men were comparativists with a wide range of knowledge of different cultures, and all were struck by the similarities in agnatic kinship organization in societies as widely separated as the Hindus, Greeks, and Germans.4 The nineteenth-century historical anthropologists all believed that kinship structures evolved over time, and that there was a general pattern of development in human societies from large corporate kin groups to smaller families based on voluntary unions by individual men and women. In Henry Maine"s famous concept, modernization involved the shift from "status to contract."5 That is, early societies ascribed social status to individuals, specifying everything from marriage partners to occupations to religious beliefs. In modern societies, by contrast, individuals could freely contract with one another to enter into different kinds of social relationships, the most central of which was the marriage contract. Maine did not, however, have a dynamic theory of how and when the shift from status to contract occurred. That is, early societies ascribed social status to individuals, specifying everything from marriage partners to occupations to religious beliefs. In modern societies, by contrast, individuals could freely contract with one another to enter into different kinds of social relationships, the most central of which was the marriage contract. Maine did not, however, have a dynamic theory of how and when the shift from status to contract occurred.
There is in fact much misunderstanding about both the dating of the shift in European kinship patterns and the causative agent. Many people believe that Europeans, much like other peoples around the world, lived in tribes or large, extended family groups right up until the Industrial Revolution, when the pressures of machine production and the need for social mobility broke them up. By this view, the economic changes we a.s.sociate with industrialization and the emergence of smaller nuclear families were part of the same process.6 This opinion most likely comes from early modernization theory. Karl Marx in the Communist Manifesto Communist Manifesto talks about the bourgeois family and how the bourgeoisie "has torn away from the family its sentimental veil, and has reduced the family relation to a mere money relation." The rise of the bourgeoisie is driven, in turn, by changes in technology and the material modes of production. Max Weber postulated a sharp break between traditional and modern societies. Traditional societies were characterized by extensive kinship ties, restrictions on market transactions due to religious or kinship constraints, lack of individual social mobility, and informal social norms rooted in tradition, religion, and charisma. Modern societies, by contrast, were individualistic, egalitarian, merit and market oriented, mobile, and structured by rational-legal forms of authority. Weber argued that all of these characteristics were part of a single package: it was impossible to develop an efficient, market-based economy in a society in which priests set prices or property was entailed by kin obligations. He believed that this kind of rational modernity emerged only in the West and dated the transition to modernity to a sequence of events that took place in the sixteenth and seventeenth centuries, encompa.s.sing the Protestant Reformation and the Enlightenment. Thus Marxists tended to see the rise of individualism and the nuclear family driven by economic change, whereas Weberians saw Protestantism as the main driver. Either way, in their views, the change was not more than a few hundred years old. talks about the bourgeois family and how the bourgeoisie "has torn away from the family its sentimental veil, and has reduced the family relation to a mere money relation." The rise of the bourgeoisie is driven, in turn, by changes in technology and the material modes of production. Max Weber postulated a sharp break between traditional and modern societies. Traditional societies were characterized by extensive kinship ties, restrictions on market transactions due to religious or kinship constraints, lack of individual social mobility, and informal social norms rooted in tradition, religion, and charisma. Modern societies, by contrast, were individualistic, egalitarian, merit and market oriented, mobile, and structured by rational-legal forms of authority. Weber argued that all of these characteristics were part of a single package: it was impossible to develop an efficient, market-based economy in a society in which priests set prices or property was entailed by kin obligations. He believed that this kind of rational modernity emerged only in the West and dated the transition to modernity to a sequence of events that took place in the sixteenth and seventeenth centuries, encompa.s.sing the Protestant Reformation and the Enlightenment. Thus Marxists tended to see the rise of individualism and the nuclear family driven by economic change, whereas Weberians saw Protestantism as the main driver. Either way, in their views, the change was not more than a few hundred years old.
FROM STATUS TO CONTRACT.
Twentieth-century social historians and anthropologists have pushed the dating of the shift from status to contract steadily backward in time. I already noted Hajnal"s view that the distinctive European pattern dated from the fifteenth and sixteenth centuries. Alan MacFarlane"s study of the origins of English individualism shows that the right of individuals to freely alienate their property while still alive and disinherit their children in testamentary wills was already well established in the English Common Law by the early sixteenth century.7 This is significant because in what he labels "peasant societies" that were characteristic of Eastern Europe and much of the rest of the world, kinship obligations imposed severe entails on the ability of property owners to sell their land. What he labels a peasant society is one characterized by extended families, in which property rights are either held communally or else tied up in complex relations of interdependence between different degrees of relatives. In such societies, peasants are tied to the land they work by many noneconomic factors, such as the fact that their ancestors are buried on it. This is significant because in what he labels "peasant societies" that were characteristic of Eastern Europe and much of the rest of the world, kinship obligations imposed severe entails on the ability of property owners to sell their land. What he labels a peasant society is one characterized by extended families, in which property rights are either held communally or else tied up in complex relations of interdependence between different degrees of relatives. In such societies, peasants are tied to the land they work by many noneconomic factors, such as the fact that their ancestors are buried on it.
But MacFarlane notes that the right of seisin, or freehold possession of land, had already become widespread in England at least three centuries before this. One study of land transfers in an English district during the late fifteenth century showed only 15 percent going to the owner"s family during his lifetime, and 10 percent at death.8 But all the way back at the end of the twelfth and beginning of the thirteenth century, English villeins (tenants legally tied to their lands) were buying, selling, and leasing property without the permission of their lords. But all the way back at the end of the twelfth and beginning of the thirteenth century, English villeins (tenants legally tied to their lands) were buying, selling, and leasing property without the permission of their lords.9 One important measure of the decay of complex kinship structures is the legal right of women to hold and dispose of property. In agnatic societies, women achieve legal personhood only by virtue of their marriage to and mothering of a male in the lineage. While widows and unmarried daughters may have certain rights of inheritance, they are usually required to keep the lineage"s property within the agnatic line. Yet Englishwomen had the right to hold and dispose of property freely and to sell it to individuals outside the family from a point not long after the Norman Conquest in 1066. Indeed, from at least the thirteenth century, they could not only own land and chattels, they also could sue and be sued, and make wills and contracts without permission of a male guardian. Granting such rights in a patrilineal society would have the effect of undermining the lineage"s ability to control property, and would thus undermine the social system as a whole.10 Hence the ability of women to own and bequeath property is an indicator of the deterioration of tribal organization and suggests that strict patrilineality had already disappeared by this early point. Hence the ability of women to own and bequeath property is an indicator of the deterioration of tribal organization and suggests that strict patrilineality had already disappeared by this early point.
One of the fascinating indicators of early English individualism cited by MacFarlane is the appearance of "maintenance contracts" between children and their parents as early as the thirteenth century. Tribal societies organized around groups claiming descent from a common ancestor typically worship those ancestors. A great deal of Confucian morality is built around the obligations of children, particularly sons, to look after their parents. Confucian moralists were clear that individuals had stronger obligations to their parents than to their own children, and Chinese law severely punished children who behaved in unfilial ways.
Things were rather different in England, where parents who foolishly pa.s.sed legal t.i.tle to their possessions to their children while still alive had no customary residual rights to their property. One medieval poem cites the case of a father who turned over his property to his son, who then began to feel his father was too heavy a burden and started to mistreat him. When his father was shivering with cold, he told his young son to cover his grandfather with a sack. "The boy cut the sack in two, covered his grandfather with half of it, and showed his father the other half, to signify that just as his father had mistreated his grandfather, so the boy when his turn came would mistreat his father in his old age and cover him when he was cold with only half a sack."11 To avoid situations like this, parents signed maintenance contracts with their children obliging the latter to care for them once they had inherited their parents" property. "For surrendering the property a couple in Bedfordshire in 1294 were promised, in return, food and drink and a dwelling in the main messuage [house], but if the two couples started to quarrel, then the old couple were to have another house and "six quarters of hard corn at Michaelmas, namely three quarters of wheat, a quarter and a half of barley, a quarter and a half of beans and peas, and a quarter of oats" and all the goods and chattels, movable and immovable, of the said house." To avoid situations like this, parents signed maintenance contracts with their children obliging the latter to care for them once they had inherited their parents" property. "For surrendering the property a couple in Bedfordshire in 1294 were promised, in return, food and drink and a dwelling in the main messuage [house], but if the two couples started to quarrel, then the old couple were to have another house and "six quarters of hard corn at Michaelmas, namely three quarters of wheat, a quarter and a half of barley, a quarter and a half of beans and peas, and a quarter of oats" and all the goods and chattels, movable and immovable, of the said house."12 The reduction of relationships in the family to "a mere money relation" that Marx thundered against was not, it appears, an innovation of the eighteenth-century bourgeoisie but appeared in England many centuries before that cla.s.s"s supposed rise. Putting one"s parents out to pasture in a nursing home has very deep historical roots in Western Europe. This suggests that, contrary to Marx, capitalism was the consequence rather than the cause of a change in social relationships and custom.
But even the thirteenth century is too late to date the European shift away from complex kinship, or from status to contract. The great French historian Marc Bloch noted that blood ties were the basis of social organization before the rise of feudalism in the ninth and tenth centuries. The vendetta, or feud between two rival tribal lineages, has a long history in European society, something with which we are familiar from Shakespeare"s Romeo and Juliet Romeo and Juliet. In addition, Bloch confirms that in this period, groups of kinsmen or large extended families owned property in common, and that even when land started to become freely alienable by individuals, it was still entailed by requirements that the seller obtain the permission of a circle of kinsmen.13 However, Bloch notes, the huge agnatic lineages tracing descent to a single ancestor characteristic of China, India, and the Middle East had long ago disappeared in Europe: "The Roman gens gens had owed the exceptional firmness of its pattern to the absolute primacy of descent in the male line. Nothing like this was known in the feudal epoch." As evidence, he points out that Europeans in the Middle Ages never traced their descent unilineally through the father, as would be necessary to maintain the boundaries between lineage segments in a tribal society. Throughout medieval times it was common for mothers to give their daughters their own surnames, something forbidden in an agnatic society like China. Individuals often thought of themselves as belonging equally to both the mother"s and the father"s family, and the offspring of two prominent families would join the surnames of both lineages (for example, Valery Giscard d"Estaing, or the present-day Spanish practice of using the family names of both parents). By the thirteenth century, nuclear families very similar to contemporary ones had already started to emerge all over Europe. It was harder to carry on blood feuds, because the circle of vengeance kept getting smaller, and there were many individuals who felt themselves related to both sides of the quarrel. had owed the exceptional firmness of its pattern to the absolute primacy of descent in the male line. Nothing like this was known in the feudal epoch." As evidence, he points out that Europeans in the Middle Ages never traced their descent unilineally through the father, as would be necessary to maintain the boundaries between lineage segments in a tribal society. Throughout medieval times it was common for mothers to give their daughters their own surnames, something forbidden in an agnatic society like China. Individuals often thought of themselves as belonging equally to both the mother"s and the father"s family, and the offspring of two prominent families would join the surnames of both lineages (for example, Valery Giscard d"Estaing, or the present-day Spanish practice of using the family names of both parents). By the thirteenth century, nuclear families very similar to contemporary ones had already started to emerge all over Europe. It was harder to carry on blood feuds, because the circle of vengeance kept getting smaller, and there were many individuals who felt themselves related to both sides of the quarrel.14 According to Bloch, the entire inst.i.tution of feudalism can in some sense be understood as a desperate adaptation to social isolation in a society that could not fall back on kinship ties as a source of social solidarity. From the late seventh century on, Europe suffered a series of devastating external invasions: the Vikings from the north, the Arabs or Saracens coming up through North Africa and Spain from the south, and the Hungarians from the east. Even if the Arabs were turned back at Poitiers, Muslim control of the Mediterranean cut Europe off from the trade with Byzantium and North Africa that had been the basis of the Roman economy. 15 15 With the decay of the Carolingian Empire in the ninth century, cities began to wither, and populations, beset by innumerable warlords, retreated into the self-sufficiency of individual villages. With the decay of the Carolingian Empire in the ninth century, cities began to wither, and populations, beset by innumerable warlords, retreated into the self-sufficiency of individual villages.
During this nadir of European civilization, kinship did make something of a comeback due to the collapse of larger political structures. But already by then, the structure of the European peoples" agnatic lineages had been too weakened to be a source of social support. Feudalism arose as an alternative alternative to kinship: to kinship:
Yet to the individual, threatened by the numerous dangers bred by an atmosphere of violence, the kinship group did not seem to offer adequate protection, even in the first feudal age. In the form in which it then existed, it was too vague and too variable in its outlines, too deeply undermined by the duality of descent by male and female lines. That is why men were obliged to seek or accept other ties. On this point history is decisive, for the only regions in which powerful agnatic groups survived-German lands on the sh.o.r.es of the North Sea, Celtic districts of the British Isles-knew nothing of va.s.salage, the fief and the manor. The tie of kinship was one of the essential elements of feudal society; its relative weakness explains why there was feudalism at all.16
Feudalism was the voluntary submission of one individual to another, unrelated, individual, based on the exchange of protection for service: "Neither the State nor the family any longer provided adequate protection. The village community was barely strong enough to maintain order within its own boundaries; the urban community scarcely existed. Everywhere, the weak man felt the need to be sheltered by someone more powerful. The powerful man, in his turn, could not maintain his prestige or his fortune or even ensure his own safety except by securing for himself, by persuasion or coercion, the support of subordinates bound to his service."17 But we still have not arrived at the proper date for the European transition out of kinship, nor an adequate causal mechanism.18 The most convincing explanation for the shift has been given by the social anthropologist Jack Goody, who pushes the date for the beginnings of the transition all the way back to the sixth century, and attributes responsibility to Christianity itself-or, more specifically, to the inst.i.tutional interests of the Catholic church. The most convincing explanation for the shift has been given by the social anthropologist Jack Goody, who pushes the date for the beginnings of the transition all the way back to the sixth century, and attributes responsibility to Christianity itself-or, more specifically, to the inst.i.tutional interests of the Catholic church.19 Goody notes that the distinctive Western European marriage pattern began to branch off from the dominant Mediterranean pattern by the end of the Roman Empire. The Mediterranean pattern, which included the Roman gens, was strongly agnatic or patrilineal, leading to the segmentary organization of society. The agnatic group tended to be endogamous, with some preference for cross-cousin marriage. (I noted the prevalence of cross-cousin marriage in the Dravidian culture of southern India in chapter 11 11; it is also widely practiced in the Arab world and among Pashtuns, Kurds, and many Turkic peoples.) There was a strict separation of the s.e.xes and little opportunity for women to own property or partic.i.p.ate in the public sphere. The Western European pattern was different in all of these respects: inheritance was bilateral; cross-cousin marriage was banned and exogamy promoted; and women had greater rights to property and partic.i.p.ation in public events.
This shift was driven by the Catholic church, which took a strong stand against four practices: marriages between close kin, marriages to the widows of dead relatives (the so-called levirate), the adoption of children, and divorce. The Venerable Bede, reporting on the efforts of Pope Gregory I to convert the pagan Anglo-Saxons to Christianity in the sixth century, notes how Gregory explicitly condemned the tribe"s practices of marriage to close relatives and the levirate. Later church edicts forbade concubinage, and promoted an indissoluble, monogamous lifetime marriage bond between men and women.20 The reasons for these prohibitions, Goody argues, are not firmly anch.o.r.ed in the Scriptures, or in Christian doctrine more generally. The prohibited practices were common in the Palestine of Jesus" birth; Jesus himself may have been the product of a cross-cousin marriage, and the levirate was common among the Jews. The Gospels, it is true, take an antifamilistic stand: in Matthew, Jesus says, "He that loveth father or mother more than me is not worthy of me: and he that loveth son or daughter more than me is not worthy of me." But these, Goody argues, are the words of a millenarian prophet seeking to recruit people away from the security of their kin groups into a new schismatic sect. The theological arguments in favor of the new prohibitions were often taken from Old Testament sources that the Jews interpreted quite differently.
The reason that the church took this stand, in Goody"s view, had much more to do with the material interests of the church than with theology. Cross-cousin marriage (or any other form of marriage between close relatives), the levirate, concubinage, adoption, and divorce are all what he labels "strategies of heirship" whereby kinship groups are able to keep property under the group"s control as it is pa.s.sed down from one generation to another. Life expectancy in Europe and the Mediterranean world at the time was less than thirty-five. The probability of a couple"s producing a male heir who survived into adulthood and who could carry on the ancestral line was quite low. As a result, societies legitimated a wide range of practices that allowed individuals to produce heirs. Concubinage has already been discussed in this regard in the discussion of China; divorce can be seen as a form of serial concubinage in monogamous societies. The levirate was practiced when a brother died before he produced children; his wife"s marriage to a younger brother ensured that his property would remain consolidated with that of his siblings. Cross-cousin marriage ensured that property would remain in the hands of close family members. Whatever the case, the church systematically cut off all available avenues that families had for pa.s.sing down property to descendants. At the same time, it strongly promoted voluntary donations of land and property to itself. The church thus stood to benefit materially from an increasing pool of property-owning Christians who died without heirs.21 The relatively high status of women in Western Europe was an accidental by-product of the church"s self-interest. The church made it difficult for a widow to remarry within the family group and thereby reconvey her property back to the tribe, so she had to own the property herself. A woman"s right to own property and dispose of it as she wished stood to benefit the church, since it provided a large source of donations from childless widows and spinsters. And the woman"s right to own property spelled the death knell for agnatic lineages, by undermining the principle of unilineal descent.22 The Catholic church did very well financially in the centuries following these changes in the rules, though this was not simply a case of post hoc ergo propter hoc. By the end of the seventh century, one-third of the productive land in France was in ecclesiastical hands; between the eighth and ninth centuries, church holdings in northern France, the German lands, and Italy doubled.23 These donations turned the church into a formidable economic and political inst.i.tution, and paved the way for the invest.i.ture conflict of Gregory VII (described in chapter These donations turned the church into a formidable economic and political inst.i.tution, and paved the way for the invest.i.ture conflict of Gregory VII (described in chapter 18 18). There is some parallel between these donations and the waqf donations to charitable foundations by wealthy Muslims. But while many of the waqfs were stratagems by wealthy individuals to shield their property from taxation and hand it down to their children, the lands donated by childless widows and spinsters came with no strings attached. The church thus found itself a large property owner, running manors and overseeing the economic production of serfs throughout Europe. This helped the church in its mission of feeding the hungry and caring for the sick, and it also made possible a vast expansion of the priesthood, monasteries, and convents. But it also necessitated the evolution of an internal managerial hierarchy and set of rules within the church itself that made it an independent political player in medieval politics.
These changes had a correspondingly devastating impact on tribal organization throughout Western Europe. The German, Norse, Magyar, and Slavic tribes saw their kinship structures dissolve within two or three generations of their conversion to Christianity. It is true that these conversions were rooted in politics, like the Magyar monarch Istvan"s (St. Stephen) acceptance of Holy Communion in the year 1000. But the actual change in social mores and family rules was enforced not by political authorities but by the church on a social and cultural level.
THE SOCIAL BACKGROUND TO STATE BUILDING IN EUROPE.
Europe (and its colonial offshoots) was exceptional insofar as the transition out of complex kinship occurred first on a social and cultural level rather than on a political one. By changing marriage and inheritance rules, the church in a sense acted politically and for economic motives. But the church was not the sovereign ruler of the territories where it operated; rather, it was a social actor whose influence lay in its ability to set cultural rules. As a result, a far more individualistic European society was already in place during the Middle Ages, before the process of state building began, and centuries before the Reformation, Enlightenment, and Industrial Revolution. Rather than being the outcome of these great modernizing shifts, change in the family was more likely a facilitative condition for modernization to happen in the first place. An emerging capitalist economy in Italy, England, and the Netherlands in the sixteenth century did not have to overcome the resistance of large corporately organized kinship groups with substantial property to protect, as in India and China. Instead, it took root in societies that already had traditions of individualized ownership where property routinely changed hands between strangers.
This is not to say that European state builders faced a clear-cut terrain free of entrenched social inst.i.tutions. Quite the contrary: when I resume the story of the origins of the European state in chapter 21 21, we will see that a whole variety of powerful social actors were in place that were critical to the creation of a rule of law and of accountable government. There were no clans or tribes, but there was an entrenched blood n.o.bility that had acc.u.mulated wealth, military power, and legal standing during the feudal period.
The fact that these social inst.i.tutions were feudal rather than kinship based made a huge difference to the subsequent political development of Europe. The feudal relationship of va.s.salage was a contract entered into voluntarily between a stronger and a weaker individual, and it entailed legal obligations on both sides. Although it formalized a highly unequal and hierarchical society, it nonetheless set precedents for both individualism (since the contracts were entered into by individuals and not by kin groups) and for the broadening of the understanding of legal personhood. The historian Jeno Szucs argues that the relationship between landlord and peasant had come to acquire a contractual character by the year 1200, which created the basis for an expanded application of human dignity to this broader cla.s.s of persons. From that point on, "every peasant revolt in the West was an expression of enraged human dignity at the landlord"s breach of contract, and a demand for the right to "freedom.""24 This did not happen in societies where land rights were kin based and customary, or else based on the physical domination of one kin group over another. This did not happen in societies where land rights were kin based and customary, or else based on the physical domination of one kin group over another.
The replacement of kinship-based local inst.i.tutions with feudal ones had another important political impact with regard to the efficacy of local government. Both lineages and feudal inst.i.tutions took on functions of sovereignty and governance at various points, particularly when central states were weak. They could provide for local security, the administration of justice, and the organization of economic life. But feudal inst.i.tutions were inherently more flexible because they were based on contract, and they were capable of organizing more decisive collective action because they were more hierarchical. Once a feudal lord"s rights were legally established, they were not subject to constant renegotiation in the way that authority within a lineage was. Legal t.i.tle to property, whether held by the strong or the weak, conveyed a clear power to buy or sell it without restrictions imposed by a kin-based social system. A local lord could speak decisively on behalf of the community he "represented" in a way that a tribal leader could not. As we have seen, a mistake commonly made by European colonialists in India and Africa was a.s.suming that tribal leadership amounted to the same thing as the authority of a local lord in a feudal society, when the two were actually quite different.
One of Max Weber"s legacies is the tendency to think of the impact of religion on politics and the economy in terms of values, for example, the Protestant work ethic, which was said to directly influence the behavior of individual entrepreneurs during the Industrial Revolution through sanctification of work. Values were certainly important; the Christian doctrine of the universal equality of all human beings under G.o.d made it much easier to justify equality of rights for women as property owners.
But this type of explanation often begs the question of why certain religious values get promoted and rooted in societies in the first place. Such is the case with the church"s a.s.sault on extended kinship. These values do not obviously stem from Christian doctrine; after all, the no less Christian Eastern church in Constantinople made no parallel effort to change marriage and inheritance laws. As a result, tightly knit kin communities survived in most of the lands ruled by Byzantium. The famous multigenerational Serbian zadruga zadruga, or the Albanian clans with their prolonged and intricate feuds, are just two examples. The fact that these inst.i.tutions died out in Western Europe has much more to do with the material interests and powers of the church, whose control over social values was an instrument it used to its own benefit. So from one point of view, the economic turtle is standing on the back of a religious turtle, while from another point of view the religious turtle is standing on the back of an economic one farther down the stack.
Whether one regards the Catholic church"s motives as primarily religious or economic, it came to be inst.i.tutionalized as an independent political actor to a far greater degree than the religious authorities in any of the other societies under consideration. China never developed an indigenous religion more sophisticated than ancestor or spirit worship. India and the Muslim world, by contrast, were shaped from the beginning by religious innovation. Religion in both cases served as an important check on political power. But in the world of Sunni Islam, and in the Indian subcontinent, religious authority never coalesced into a single, centralized bureaucratic inst.i.tution outside the state. How this happened in Europe is intimately bound up with the development of the modern European state, and with the emergence of what we today call the rule of law.
PART THREE.
The Rule of Law
17.
THE ORIGINS OF THE RULE OF LAW.
European exceptionalism evident in the role of law in early state formation; definitions and disagreements about the rule of law; Hayek"s theories about the priority of law over legislation; how English Common Law was based on royal power, and how that bolstered the legitimacy of the English state
European political development was exceptional insofar as European societies made an early exit from tribal-level organization, and did so without the benefit of top-down political power. Europe was exceptional also in that state formation was based less on the capacity of early state builders to deploy military power than on their ability to dispense justice. The growth of the power and legitimacy of European states came to be inseparable from the emergence of the rule of law.
Early European states dispensed justice but not necessarily law. Law was rooted elsewhere, either in religion (as in the edicts regulating marriage and the family discussed in the last chapter) or in the customs of tribes or other local communities. Early European states occasionally legislated-that is, created new laws-but their authority and legitimacy rested more on their ability to impartially enforce laws not necessarily of their own making.
This distinction between law and legislation is critical to understanding the meaning of the rule of law itself. As with a term like "democracy," it sometimes seems as if there are as many definitions of "rule of law" as there are legal scholars.1 I use it in the following sense, which corresponds to several important currents in thinking about the phenomenon in the West: The I use it in the following sense, which corresponds to several important currents in thinking about the phenomenon in the West: The law law is a body of abstract rules of justice that bind a community together. In premodern societies, the law was believed to be fixed by an authority higher than any human legislator, either by a divine authority, by immemorial custom, or by nature. is a body of abstract rules of justice that bind a community together. In premodern societies, the law was believed to be fixed by an authority higher than any human legislator, either by a divine authority, by immemorial custom, or by nature.2 Legislation Legislation, on the other hand, corresponds to what is now called positive law and is a function of political power, that is, the ability of a king, baron, president, legislature, or warlord to make and enforce new rules based ultimately on some combination of power and authority. The rule of law can be said to exist only where the preexisting body of law is sovereign over legislation, meaning that the individual holding political power feels bound by the law. This is not to say that those with legislative power cannot make new laws. But if they are to function within the rule of law, they must legislate according to the rules set by the preexisting law and not according to their own volition.
The original understanding of the law as something fixed either by divine authority, by custom, or by nature implied that the law could not be changed by human agency, though it could and had to be interpreted to fit novel circ.u.mstances. With the decline of religious authority and belief in natural law in modern times, we have come to understand the law as something created by human beings, but only under a strict set of procedural rules that guarantee that they conform to a broad social consensus over basic values. The distinction between law and legislation now corresponds to the distinction between const.i.tutional and ordinary law, where the former has more stringent requirements for enactment, such as supermajority voting. In the contemporary United States, this means that any new law pa.s.sed by Congress must be consistent with a prior and superior body of law, the Const.i.tution, as interpreted by the Supreme Court.
Up to this point, I have discussed political development in terms of state building, the ability of states to concentrate and use power. The rule of law is a separate component of political order that puts limitations on a state"s power. The first checks on executive power were not those imposed by democratic a.s.semblies or elections. Rather, they were the result of societies believing that rulers had to operate under the law. State building and the rule of law therefore coexist in a certain tension. On the one hand, rulers can enhance their authority by acting within and on behalf of the law. On the other hand, the law can prevent them from doing things they would like to do, not just in their own private interest but in the interest of the community as a whole. So the rule of law is constantly threatened by the need to generate political power, from seventeenth-century English monarchs who wanted to raise revenues without going through Parliament to Latin American governments in the twentieth century fighting terrorism with extralegal death squads.
CONTEMPORARY CONFUSIONS CONCERNING THE RULE OF LAW.
In contemporary developing countries, one of the greatest political deficits lies in the relative weakness of the rule of law. Of all the components of contemporary states, effective legal inst.i.tutions are perhaps the most difficult to construct. Military organization and taxing authority arise naturally out of people"s basic predatory instincts. It is not difficult for a warlord to throw together a militia and use it to extract resources from the community. At the other end of the spectrum, democratic elections are relatively easy (if expensive) to stage, and there is today in place a large international infrastructure to help facilitate them.3 Legal inst.i.tutions, on the other hand, must be spread throughout the entire country and maintained on an ongoing basis. They require physical facilities as well as huge investments in the training of lawyers, judges, and other officers of the court, including the police who will ultimately enforce the law. But most important, legal inst.i.tutions need to be seen as legitimate and authoritative, not just by ordinary people but also by powerful elites in the society. Bringing this about has proved to be no easy task. Latin America today is overwhelmingly democratic, but rule of law is extremely weak, from the bribe-taking police officer to a tax-evading judge. The Russian Federation still stages democratic elections, but particularly since the rise of Vladimir Putin, its elites from the president on down have been able to break the law with impunity. Legal inst.i.tutions, on the other hand, must be spread throughout the entire country and maintained on an ongoing basis. They require physical facilities as well as huge investments in the training of lawyers, judges, and other officers of the court, including the police who will ultimately enforce the law. But most important, legal inst.i.tutions need to be seen as legitimate and authoritative, not just by ordinary people but also by powerful elites in the society. Bringing this about has proved to be no easy task. Latin America today is overwhelmingly democratic, but rule of law is extremely weak, from the bribe-taking police officer to a tax-evading judge. The Russian Federation still stages democratic elections, but particularly since the rise of Vladimir Putin, its elites from the president on down have been able to break the law with impunity.
There is a large literature that links the establishment of the rule of law to economic development.4 This literature reflects at base an important insight, namely, that the emergence of the modern world, including the emergence of a capitalist economy, was broadly dependent on the prior existence of a rule of law. The absence of a strong rule of law is indeed one of the princ.i.p.al reasons why poor countries can"t achieve higher rates of growth. This literature reflects at base an important insight, namely, that the emergence of the modern world, including the emergence of a capitalist economy, was broadly dependent on the prior existence of a rule of law. The absence of a strong rule of law is indeed one of the princ.i.p.al reasons why poor countries can"t achieve higher rates of growth.
But this literature is highly confused and inconsistent with regard to the basic definition of the rule of law and how to measure its presence or absence. In addition, the theory that links the different components of the rule of law to economic growth is empirically questionable, and becomes doubly so when projected back onto societies that existed under Malthusian economic conditions. Before we can proceed with the historical account of the origins of the rule of law, then, we need to clear away some of the baggage left by contemporary discussions of this subject.
When economists talk about the rule of law, they are usually referring to modern property rights and contract enforcement.5 Modern property rights are those held by individuals, who are free to buy and sell their property without restrictions imposed by kin groups, religious authorities, or the state. The theory by which property rights and contract are related to economic growth is straightforward. No one will make long-term investments unless he knows that his property rights are secure. If a government suddenly raises taxes on an investment, as Ukraine in the early 1990s did after signing an agreement for cell phone infrastructure, the investors may pull out and will be deterred from future projects. Similarly, trade requires a legal machinery to enforce contracts and to adjudicate the disputes that inevitably arise among contracting parties. The more transparent the contracting rules, and the more even-handed their enforcement, the more trade will be encouraged. This is why many economists emphasize the importance of "credible commitments" as a hallmark of a state"s inst.i.tutional development. Modern property rights are those held by individuals, who are free to buy and sell their property without restrictions imposed by kin groups, religious authorities, or the state. The theory by which property rights and contract are related to economic growth is straightforward. No one will make long-term investments unless he knows that his property rights are secure. If a government suddenly raises taxes on an investment, as Ukraine in the early 1990s did after signing an agreement for cell phone infrastructure, the investors may pull out and will be deterred from future projects. Similarly, trade requires a legal machinery to enforce contracts and to adjudicate the disputes that inevitably arise among contracting parties. The more transparent the contracting rules, and the more even-handed their enforcement, the more trade will be encouraged. This is why many economists emphasize the importance of "credible commitments" as a hallmark of a state"s inst.i.tutional development.
This definition of the rule of law overlaps, but only partially, with the one presented at the beginning of this chapter. Obviously, if a government does not feel bound by a preexisting rule of law, but considers itself fully sovereign in all respects, nothing will prevent it from taking the property of its citizens, or of foreigners who happen to be doing business with it. If general legal rules are not enforced in the cases of powerful elites, or against the most powerful actor of all, the government, then there can be no ultimate certainty about the security of either private property or trade. As the political scientist Barry Weingast has noted, a state strong enough to enforce property rights can also take them away.6 On the other hand, it is perfectly possible to have "good enough" property rights and contract enforcement that permit economic development without the existence of a true rule of law in the sense of the law being the final sovereign.7 A good example is the People"s Republic of China. There is no true rule of law in China today: the Chinese Communist Party does not accept the authority of any other inst.i.tution in China as superior to it or able to overturn its decisions. Although the PRC has a const.i.tution, the party makes the const.i.tution rather than the reverse. If the current Chinese government wanted to nationalize all existing foreign investments, or renationalize the holdings of private individuals and return the country to Maoism, there is no legal framework preventing it from doing so. The Chinese government chooses not to do so out of self-interest, which seems to be regarded by most parties as a sufficiently credible a.s.surance to future good behavior. An abstract commitment to "rule of law" has not been necessary for the country to achieve double-digit rates of growth for more than three decades. When the party disbanded collective farms in 1978 under the Household Responsibility law, it did not restore to Chinese peasants full modern property rights (that is, the full right of individuals to alienate real property). Rather, it gave them heritable usufructuary rights to their land (rights to long-term leases), similar to the rights possessed by peasants in the central provinces of the Ottoman Empire. These rights, however, were "good enough" to lead to a doubling of agricultural output just four years after the change in property rules. A good example is the People"s Republic of China. There is no true rule of law in China today: the Chinese Communist Party does not accept the authority of any other inst.i.tution in China as superior to it or able to overturn its decisions. Although the PRC has a const.i.tution, the party makes the const.i.tution rather than the reverse. If the current Chinese government wanted to nationalize all existing foreign investments, or renationalize the holdings of private individuals and return the country to Maoism, there is no legal framework preventing it from doing so. The Chinese government chooses not to do so out of self-interest, which seems to be regarded by most parties as a sufficiently credible a.s.surance to future good behavior. An abstract commitment to "rule of law" has not been necessary for the country to achieve double-digit rates of growth for more than three decades. When the party disbanded collective farms in 1978 under the Household Responsibility law, it did not restore to Chinese peasants full modern property rights (that is, the full right of individuals to alienate real property). Rather, it gave them heritable usufructuary rights to their land (rights to long-term leases), similar to the rights possessed by peasants in the central provinces of the Ottoman Empire. These rights, however, were "good enough" to lead to a doubling of agricultural output just four years after the change in property rules.
Dynastic China did not have a rule of law any more than Communist China. On the other hand, imperial China in normal times may well have had "good enough" property rights at a local level to promote agricultural productivity up to at least the frontier of then-existing technology, rights not terribly different from those enjoyed by Chinese peasants today. The constraints on property rights were less those imposed by a grasping, predatory state than the continuing connection between property and kinship. Property was entailed by myriad rights and duties imposed by agnatic lineages, which up through the Chinese Republic in the twentieth century still recognized the rights of families to restrict the alienation of land.8 It is not clear, moreover, that even the best-specified modern property rights would be sufficient in themselves to raise productivity substantially, or to create the modern capitalist economic world out of a Malthusian society. Before the introduction of other inst.i.tutions necessary to sustain continuous technological advance (such as the scientific method, universities, human capital, research laboratories, a cultural milieu that encouraged risk and experimentation, and so forth), there were limits to the kinds of productivity gains that good property rights on their own could induce, and thus no a.s.sumption that continuous technological advances would occur.9 Thus the economists" emphasis on modern property rights and contract enforcement under a rule of law may be misplaced in two respects. First, in the contemporary world where continuous technological innovation is possible, "good enough" property rights with no sovereign rule of law are at times sufficient to produce high rates of economic growth. Second, in a Malthusian world, such rates of growth are not achievable even presuming the existence of modern property rights and a rule of law, because the binding constraint on growth lies elsewhere.
There is yet another definition of the rule of law that likely had as great an impact on economic life in premodern as in contemporary times. This is the simple security of persons, the ability to exit from the violent state of nature and go about one"s daily business without fear of being killed or robbed. We tend to appreciate this aspect of the rule of law more when it is absent than when it is present and we can take it for granted.
Finally, it is not possible to talk about the rule of law without specifying to whom to whom the law applies, that is, the circle of people who are considered legal persons protected by the law. Societies seek to enforce basic social rules universally, but a rule of law that protects citizens against arbitrary actions of the state itself is often initially applied only to a minority of privileged subjects. The law, in other words, protects the interests of the elites who are close to the state or who control the state, and in that sense law resembles what Socrates in Plato"s the law applies, that is, the circle of people who are considered legal persons protected by the law. Societies seek to enforce basic social rules universally, but a rule of law that protects citizens against arbitrary actions of the state itself is often initially applied only to a minority of privileged subjects. The law, in other words, protects the interests of the elites who are close to the state or who control the state, and in that sense law resembles what Socrates in Plato"s Republic Republic labels the "justice of a band of robbers." labels the "justice of a band of robbers."
Take, for example, a letter from Mme. de Sevigne, one of the greatest salon patrons of seventeenth-century France, to her daughter. This witty and sensitive woman describes how soldiers in Brittany were enforcing a new tax, turning old men and children out of their houses in search of a.s.sets to seize. Some sixty townspeople were to be hanged the following day for nonpayment. She goes on: "The fiddler who had begun the dance and the stealing of stamped paper was broken on the wheel; he was quartered [cut into four pieces] and his four quarters exposed in the four corners of the town."10 Obviously, the French state would not enforce such drastic penalties on Mme. de Sevigne and her circle. As we will see in chapter 23 23, it imposed onerous taxes on commoners precisely because it was too respectful of the property rights and personal security of the aristocracy. It is therefore not true that there was no rule of law in seventeenth-century France, but the law did not regard commoners as legal persons ent.i.tled to the same rights as the aristocracy. The same was true of the United States at its founding, which denied African Americans, women, Native Americans-anyone who wasn"t a white male property owner-the right to vote. The process of democratization gradually expands the rule of law to include all persons.
One of the consequences of these confusions about the meaning of the rule of law is that programs designed by rich countries to improve rule of law in poor ones seldom produce useful results.11 People lucky enough to live in countries with a strong rule of law usually don"t understand how it arose in the first place, and they mistake the outward forms of the rule of law for its substance. Thus, for example, "checks and balances" is taken to be a hallmark of a strong rule-of-law society, since the branches of government check the behavior of one another. But the mere existence of a formal check is not the same thing as strong democratic governance. Courts can be used to frustrate collective action, as in contemporary India, where prolonged judicial appeals can bog down critical infrastructure projects, or they can be used to protect the interests of elites against the will of the government, as in the 1905 Supreme Court case of People lucky enough to live in countries with a strong rule of law usually don"t understand how it arose in the first place, and they mistake the outward forms of the rule of law for its substance. Thus, for example, "checks and balances" is taken to be a hallmark of a strong rule-of-law society, since the branches of government check the behavior of one another. But the mere existence of a formal check is not the same thing as strong democratic governance. Courts can be used to frustrate collective action, as in contemporary India, where prolonged judicial appeals can bog down critical infrastructure projects, or they can be used to protect the interests of elites against the will of the government, as in the 1905 Supreme Court case of Lochner v. New York Lochner v. New York, which protected business interests against a legislative effort to limit working hours. Thus the form of separated powers periodically fails to correspond necessarily to the substance of a law-abiding society.
In the discussion that follows, we will look at the development of the rule of law in as broad a perspective as possible: Where did law itself-that is, a common set of rules of justice-originate? How did specific rules regarding property rights, contract enforcement, and commercial law develop? And how did the highest political authorities come to accept the sovereignty of law?
HAYEK"S THEORY THAT LAW IS PRIOR TO LEGISLATION The great Austrian economist Friedrich A. Hayek developed a sophisticated theory of the origins of law that provides important insights into the meaning of the rule of law, and is the framework for how many people think about the law today. Hayek is known as the G.o.dfather of contemporary libertarianism, but libertarians are not opposed to rules as such: according to Hayek, "Only the existence of common rules makes the peaceful existence of individuals in society possible."12 Hayek took aim at what he labeled the "rationalist" or "constructivist" understanding of the origins of law, namely, that it proceeded from the will of a legislator who rationally studied the problems of society and devised a law to establish what he thought was a better social order. Constructivism, Hayek argued, was a conceit of the last three hundred years, and particularly of a series of French thinkers including Descartes and Voltaire, who thought the human mind was sufficient to understand the workings of human society. This led to what Hayek regarded as huge mistakes, such as the French and Bolshevik revolutions, in which top-down political power was used to reorder the whole of society based on a preconceived notion of social justice. In Hayek"s day (the middle decades of the twentieth century), this mistake was being repeated not only by Socialist countries such as the Soviet Union, which relied on rational planning and centralized authority, but by social democratic welfare states in Europe. Hayek took aim at what he labeled the "rationalist" or "constructivist" understanding of the origins of law, namely, that it proceeded from the will of a legislator who rationally studied the problems of society and devised a law to establish what he thought was a better social order. Constructivism, Hayek argued, was a conceit of the last three hundred years, and particularly of a series of French thinkers including Descartes and Voltaire, who thought the human mind was sufficient to understand the workings of human society. This led to what Hayek regarded as huge mistakes, such as the French and Bolshevik revolutions, in which top-down political power was used to reorder the whole of society based on a preconceived notion of social justice. In Hayek"s day (the middle decades of the twentieth century), this mistake was being repeated not only by Socialist countries such as the Soviet Union, which relied on rational planning and centralized authority, but by social democratic welfare states in Europe.
This was wrong, according to Hayek, for a number of reasons, the most important of which was the fact that no single planner could ever have enough knowledge about the actual workings of a society to rationally reorder it. The bulk of knowledge in a society was local in character and dispersed throughout the whole society; no individual could master enough information to antic.i.p.ate the effects of a planned change in the laws or rules.13 Social order was not, according to Hayek, the result of top-down rational planning; rather, it occurred spontaneously through the interactions of hundreds or thousands of dispersed individuals who experimented with rules, kept the ones that worked, and rejected those that didn"t. The process by which social order was generated was incremental, evolutionary, and decentralized; only by making use of the local knowledge of myriads of individuals could a working "Great Society" ever appear. Spontaneous orders evolved in the manner Darwin posited for biological organisms-through decentralized adaptation and selection, and not through the purposeful design of a creator.
According to Hayek,