Medieval Law and the Foundations of the State

(Elliott) #1

In fact the Aristotelian analysis of regimes assumed from the first
competition for power between social groups within territorial bound-
aries. It is for this reason that some references to state as regime appear
ambiguous and capable of signifying both regime and commonwealth.
Machiavelli was led to use statifor whole countries when he applied the
analysis of regimes to the great territorial principalities of his own time:
when, for instance, he contrasted Turkey, which he described as
governed by a single ruler and his servants and therefore difficult to
conquer but easy to hold, with France, where the barons also had terri-
tories and subjects and the state was easy to capture piecemeal but
difficult to hold.^22
It was in territorially extensive communities such as France, England,
and eventually the new United States, not in the Italian cities, that the
relationship of the regime to the wider state would come to be seen as
problematic. Montesquieu^23 , Adam Ferguson in eighteenth-century
Scotland,^24 and Alexander Hamilton in a newly independent United
States^25 all saw a limit to the geographical size of a state which could
operate as a democracy. There was, perhaps, ‘a certain natural extent,
within which the passions of men are easily communicated from one, or
a few, to the whole; and there are certain numbers of men who can be
assembled, and act in a body’. The eighteenth-century philosophes’
concern with the territorial limits of a viable political state was over-
shadowed, however, by their growing conviction that human society as
a whole developed through successive statesor stages: a process which
has been termed ‘legal evolution’, because each stage was believed to be
marked by a transformation of laws. In his Spirit of the Laws, published
in 1748, Montesquieu explained how the ‘law in general’ which
‘governs all the peoples of the earth’ was fitted by positive law-making
to the character of a particular people and the climate and terrain of
their country, to produce the ‘civil state’. (We are told, for instance, how


6 Introduction. State: Word and Concept


Press, 1952), 279; id., Reason in History, tr. R. S. Hartman (Indianapolis, 1953), 60; cf.
R. G. Collingwood, Essays in Political Philosophy, ed. D. Boucher (Oxford: Clarendon Press,
1989), 92–113, for the state as ‘not a substance but an activity’—the political activity of every-
one in society which is concerned to provide a framework of law and order and civil peace.


(^22) Machiavelli, The Prince, ed. Q. Skinner and R. Price (Cambridge UP, 1988), 15–16 (ch.
4).
(^23) Montesquieu, De l’esprit des lois, 2 vols., ed. V. Goldschmidt (Paris: Garnier-
Flammarion, 1979), i. 127–8 (bk. I, ch. iii), 177 ff. (bk. V, ch. viii), 269 (bk. IX, ch. vi),
273 (bk. X, ch. ii), 293–4 (bk. XI, chs. v–vi), ii. 275 ff. (bk. XXVIII, ch. xxxvii), 291 ff. (bk.
XXIX).
(^24) Adam Ferguson, An Essay on the History of Civil Society 1767(Edinburgh UP, 1966),
220.
(^25) The Federalist Papers, introduced by C. Rossiter (New York: New American Library,
1961), no. 9, p. 73; J. R. Pole, ‘The Politics of the Word “State” and its relation to American
Sovereignty’, Parliaments, Estates and Representation, 8 (1988); P. Stein, Legal Evolution:
The Story of an Idea(Cambridge, 1980).

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