Medieval Law and the Foundations of the State

chapter one

Introduction. State:

Word and Concept

YvesCongar^1 and Gaines Post^2 have shone light on the use of
‘status’ in the late Carolingian period and the high middle ages respec-
tively, and Wolfgang Mager^3 and Paul-Ludwig Weinacht,^4 among
others, have discussed the development of the modernen Staatsbegriffe
from the late medieval period onwards. What is attempted here is an
account of the application of the word in legal and administrative docu-
ments throughout the middle ages. Perhaps because they are ubiquitous
and applied so variously to the condition of collectivities and to the
standing of individuals, the medieval uses of the words status, état,
estatehave been played down by the scholars who have illuminated ‘the
state tradition’, judging them to be employed ‘with little precision or
consistency’ (H. F. Dyson),^5 or to be lacking ‘the distinctively modern
idea of the State as a form of public power separate from both the ruler
and the ruled’ (Quentin Skinner).^6 But particular uses of the word can
hardly be dismissed because they fail to conform to preconceived
notions of the thing. The problem is exactly how the idea of the state
crystallized from uses of statusby people who had no obligation to be
precise and could not be consistent with a proper meaning yet to be
established.
The teleology which is only interested in ‘state’ as it can be seen to
evolve towards a presumed modern sense of the word has to be avoided,
and so has the anachronism that arises from the apparent compulsion
of present-day historians to use the term with its modern overtones

(^1) Y. Congar, ‘Status Ecclesiae’, in Essays in Medieval Law in Honor of Gaines Post, ed.
J. Strayer and D. E. Queller, Studia Gratiana, 15 (1972).
(^2) G. Post, Studies in Medieval Legal Thought: Public Law and the State, 1100–
(Princeton UP, 1964).
(^3) W. Mager, Zur Entstehung des modernen Staatsbegriffe(Wiesbaden, 1968).
(^4) P.-L. Weinacht, Staat: Studien zur Bedeutungsgeschichte des Wortes den Anfangen bis ins

19. Jahrhundert(Berlin, 1968).

(^5) H. F. Dyson, The State Tradition in Western Europe: A Study of an Idea and Institution
(Oxford: Martin Robertson, 1980), 25.
(^6) Q. Skinner, Foundations of Modern Political Thought, 2 vols. (Cambridge UP, 1978), ii.
353–5; id., ‘The State’, in Political Innovation and Conceptual Change, ed. T. Ball, J. Farr, and
R. L. Hanson (Cambridge UP, 1989), 90 ff.; cf. J. Tully, in Meaning and Context: Quentin
Skinner and his Critics, ed. J. Tully (Cambridge: Polity Press, 1988), 17.