Community and Legal Change in Capetian France

Abstract

The hegemony of law in medieval political theory and of rights in medieval political practice is a hallowed commonplace. Almost equally honored has been the view, propounded most forcefully by C. H. Mcllwain, that medieval men believed that they could find but not make law. McIlwain's view no longer commands general assent, yet a rejection of his conception of legal change does not necessitate a denial of the importance of law in medieval political theory and practice, which he and so many others have stressed. If, however, we still acknowledge the importance of law, yet recognize that medieval men were prepared to modify it consciously, then we ought to pay particular attention to the question of whether and how a medieval group could change its laws, a crucial question for constitutional development and one which has been neglected for Capetian France. The variety of types of communities in medieval Europe meant that there was great variation in men's ability to modify the laws under which they lived. Some men were able to modify their laws fairly easily when it seemed necessary. Church councils and AngloSaxon dooms testify to a tradition of conscious, if intermittent and limited, legislation. The associations for the Peace of God show men's willingness to impose new rules to implement old ideals. When crusaders captured Jerusalem or merchants won the establishment of communes, they engaged in constitution-making and, thereafter, in legislation. So also did the Cistercians, as a perusal of their statutes would remind us, and so did the Templars.