Periodization and Sovereignty

How Ideas of Feudalism and Secularization Govern the Politics of Time

Kathleen Davis

• Publisher: University of Pennsylvania Press
• Year: 2012
• ISBN:
  9780812207415
• Topic: History
• Subtopic: European Medieval History
• Index: History

Despite all recent challenges to stage-oriented histories, the idea of a division between a "medieval" and a "modern" period has survived, even flourished, in academia. Periodization and Sovereignty demonstrates that this survival is no innocent affair. By examining periodization together with the two controversial categories of feudalism and secularization, Kathleen Davis exposes the relationship between the constitution of "the Middle Ages" and the history of sovereignty, slavery, and colonialism.This book's groundbreaking investigation of feudal historiography finds that the historical formation of "feudalism" mediated the theorization of sovereignty and a social contract, even as it provided a rationale for colonialism and facilitated the disavowal of slavery. Sovereignty is also at the heart of today's often violent struggles over secular and religious politics, and Davis traces the relationship between these struggles and the narrative of "secularization, " which grounds itself in a period divide between a "modern" historical consciousness and a theologically entrapped "Middle Ages" incapable of history. This alignment of sovereignty, the secular, and the conceptualization of historical time, which relies essentially upon a medieval/modern divide, both underlies and regulates today's volatile debates over world politics.The problem of defining the limits of our most fundamental political concepts cannot be extricated, Davis argues, from the periodizing operations that constituted them, and that continue today to obscure the process by which "feudalism" and "secularization" govern the politics of time.

Part I
Feudalism

Chapter One

Sovereign Subjects, Feudal Law, and the Writing of History

But I think partly it was they [the PLO] were coming out of some kind of a feudal background, which made them incapable of understanding the way a democratic society works.

Noam Chomsky

The comment by Noam Chomsky above is not as off-handed as it may seem. Wittingly or not, it participates in a long legal history, which conceptualized a “feudal” past as a means of grounding claims to sovereignty, and then rejected this newly consolidated past as a means of distancing Europe from its others. The feudal-democratic binary that Chomsky takes for granted rests upon the effacement of this political history, and the geopolitical narrative of development implicit in his comment is the most commonplace symptom of this effacement.

This chapter investigates the historiographical becoming-feudal of the centuries now considered “medieval,” a process initiated by sixteenth-century juridical struggles over sovereignty and slavery. My primary concern is not with the appropriateness of “feudalism” as a descriptive category for the Middle Ages, an issue with a long, controversial history lately revisited by scholars such as Susan Reynolds. My focus, rather, is upon the history of the process that turned the “fief” into a narrative category, a history that begins to tell us why the “feudal”—despite its inaccuracies, contradictions, and anachronisms—persists today as a temporal marker and a lever of power.

The narrative of a feudal European past took shape through a search by sixteenth-century jurists for Europe’s legal origins, the stakes of which, according to their own arguments, were the nature of sovereignty and the history of imperium (in its related senses of executive power and supreme territorial rule).¹ Ironically, the work of these jurists, who were among the most influential legal theorists of their time, does not fit traditional categories of periodization, even though they generated what would become one of periodization’s most influential categories. Perhaps this is why they are relatively understudied, and most of their writings remain in rare books unedited since the sixteenth century. The jurists who narrativized the fief did not use terms such as “medieval” or its cognates, nor did they reject the feudal law they studied. Although they wrote in a humanist milieu influenced by the linguistic and historical ideals of Petrarch and Lorenzo Valla, and therefore considered the language of earlier legal commentary “barbaric” and its methodology “confused,” they nonetheless identified themselves with these laws and commentaries, which they took as the basis of their own legal arguments: indeed, they vied over a feudal origin story as the basis of sovereign legitimacy.² It was only after these professional jurists theorized sovereignty, subjection, and a social contract on the basis of the feudal relation of lord and vassal that legal historians such as Jean Bodin advanced arguments for absolutism by retaining this theory of the social contract, but rejecting the “feudal” as property-based and as aligned with slavery. At the very moment the colonial slave trade began to soar, in other words, feudal law and slavery were grouped together and identified as characteristic of Europe’s past and a non-European present. To this history we owe the later, persistent association of the Middle Ages with subjugation, as well as the role of the Middle Ages as the enabling figure of exclusion in much philosophical and political thought.

By the close of the sixteenth century, the narrative of a “feudal” European past was securely entrenched, and the constitutive performance of its early historiography disappeared. As a symptom of this effacement we are left with feudalism’s central but always conflicted role in mediating theories of power and temporality, signaled most obviously, perhaps, by the enduringly contested status of “feudalism” itself.³ More telling, however, is the centrality of feudalism to conceptualizing a shift in power relations—for example, the cry to abolish la féodalité on the eve of the French Revolution, feudalism’s linchpin role in the Marxist paradigm, and accusations of feudalism against “rogue” nations today.⁴ Crucial to these processes is feudalism’s productive relation with historicism (handled most interestingly by Hegel, to whom I return below), which on the one hand underwrote linearity by bonding “feudalism” and “the Middle Ages,” and on the other hand loosed feudalism to roam across time and space, but always as a temporal marker, a tick on the clock of development.⁵ As the following pages show, early feudal historiography operated in conflicting modes, one that depended upon and identified with the materiality of a “feudal” past, and one that repudiated material detail as it strove to conceptualize a universal “spirit of the law.” The conceptualization of a feudal past, in other words, negotiated the tension between positivism and idealism, as well as the tension between freedom and slavery at the heart of “modern” politics.

This chapter focuses mainly on the crucial early decades of feudal historiography’s long, conflicted story, and primarily on three of its most dominant characters, all of whom were professional legists: Ulrich Zasius (1461–1535), Germany’s leading legal scholar and practicing magistrate; Charles Du Moulin (1500–1566), “the prince of legists,” staunch French royalist under Henry II and vociferous antipapist; and François Hotman (1524–1590), a fiery Huguenot and Gallic nationalist.⁶ These “feudists” (as they were called) developed a feudal narrative within the larger project of revising and interpreting law, and they worked from differing, sometimes conflicting political positions in the struggles between the Habsburgs and France, and in France’s civil wars. The confessional as well as national loyalties of these men drove their scholarship, and their story therefore intersects the nexus of periodization, secularization, and sovereignty that I address below in Chapters 3 and 4. My focus here, however, is not upon the details of their political and religious entanglements, but upon the arguments and the implications of their feudal historiography. These legists and their contemporaries narrativized the fief and conceptualized the feudal relation as a universal category of sovereignty, a status that prepared for its extension to a theory of slavery and its contrast to citizenship in the work of Jean Bodin, with which I conclude.

The early historiography of feudal law is a tangle of contradictions for three reasons, which I set out briefly here and explain at length in the course of this chapter. First, this historiography was the medium for competing origin stories: French legists interested in forwarding France’s claims to legal independence from the Empire usually argued for a Frankish origin of feudal law, while Italian and German legists interested in defending the authority of Roman civil law and the interests of the Empire argued for a Roman origin (these have been called “Germanist” and “Romanist” positions, respectively).⁷ Second, the main players in this controversy (“feudists,” as they called themselves) stood in a conflicted relation with the humanist movement that united them. They embraced, on the one hand, the Petrarchan dictate to purge texts of postclassical barbarisms, but refused, on the other hand, an outright rejection of postclassical legal codes and commentary. Third, commentaries on the feudal relation (of lord and vassal) became the foundation of competing theories of sovereignty, particularly in regard to absolutism.

As this argument shifted from the hands of legists to those of political theorists such as Jean Bodin, it became key to theorizing the relation of sovereignty and slavery in domestic and international law. In this new role the historiographical condensation of a “feudal” past enabled a narrative transference of the “problem of slavery” from the contemporary slave trade to a brutal past that was ostensibly being left behind. At the same time, it grounded arguments regarding the “free” political subject and a social contract. The becoming-feudal of the Middle Ages, in other words, is the narrative and conceptual basis of “modern” politics.

As a way of approaching feudal historiography, we may begin with the simple but salutary reminder that medieval people—even medieval lawyers—did not think of their time as feudal any more than they thought of it as medieval. There were “fiefs” of course, at certain times and certain places, as well as laws governing fiefs. (A fief was a right to, not ownership of property, which was often a portion of land but could also be, for instance, a right to collect a certain tax.) These laws comprised one aspect of medieval contract and property law, and addressed relations between property holders, mainly aristocrats, such as the rules for inheriting, securing, or alienating fiefs; they did not, however, address the status of nonproperty holders, such as serfs.⁸ “Feudal law” did not appear as law until the twelfth century, when a small collection of academically rarefied texts (commonly known as the Libri feudorum) became important for negotiating power relations, after which royalty, popes, and nobility could draw upon these texts and their commentaries to exert pressure and gain political advantage.⁹ The centrality of property to any analysis of social and political history argues, of course, for the extension of such laws to consideration within a socioeconomic system, but such late analysis did not arise until the eighteenth-century legal and economic syntheses of thinkers such as Montesquieu, William Blackstone, and Adam Smith. By then, the politically fraught concept of a feudal past had been at work for centuries, and these late analyses owe enormous debts to—and have in turn regenerated—the constitutive political work of early feudal historiography.¹⁰

There has been scant attention paid to feudal historiography, and not inconsequentially that which does exist came through a search for the origins of “modern” historical method. In his foundational work on the feudists, Donald Kelley argues that we must look beyond their ideological agendas to their role in shaping this historical method: “What is far more interesting” than their political agendas, he argues, “is the way in which our problem [of feudal origins] illustrates the awakening of historical consciousness.”¹¹ I argue, to the contrary, that it is precisely the myth of this “awakening” and the suppressed writing of a feudal past that continues to privilege a linear narrative of civil society, which both brackets slavery and preserves a European universal “spirit of the law.”

Temporal Contradictions

To a surprising degree, the story of feudal historiography leans upon the strange history of a particular book. The narrative of a feudal past did not begin, as one might think, from study of a broad array of medieval documents and laws, but from the commentary tradition on the twelfth-century Italian Libri feudorum, an eclectic collection of treatises, statutes, and northern Italian legislation regarding fiefs. The Libri started as a private, mostly Lombard collection, and accumulated in various recensions throughout the twelfth and thirteenth centuries in the context of the revival and teaching of Roman law.¹² In the early thirteenth century, the influential glossator Hugolinus appended a recension of the Libri to the corpus of Roman law, and from that point on it circulated with the standard manuscripts of civil law used throughout Europe for teaching, and to a lesser degree for practice. After the legist Accursius glossed it along with the entire Roman code in his authoritative thirteenth-century Glossa ordinaria, the Libri’s place in the corpus of Roman civil law was secure, although its nonclassical Latin sometimes prompted commentators to question its authenticity—that is, the veracity of its ancient Roman heritage.¹³ The Libri thus existed in a fairly stable but sometimes vexed relation with the Roman law from which it drew authority, and when jurists took it up in the sixteenth century, this relation would provide the wedge for debate. Ironically, then, feudal law entered legal historiography’s mainstream with an ancient Roman passport, by virtue of a twelfth-century humanism that both enabled and put a fold into the “Renaissance” cleansing and recuperation of a legal past.

The history of the Libri and its commentary tradition challenges many standard concepts of a feudal timeline. The onset of the Libri’s immense popularity and the initiation of its burgeoning commentary tradition in the thirteenth century is “astonishing,” Kenneth Pennington notes, and “presents a historical puzzle for two reasons”:

First, by the thirteenth and perhaps as early as the twelfth century, the system of personal and property relationships that historians have denominated feudalism was distinctly on the wane. Medieval society was no longer structured around warrior vassals holding fiefs in return for military and other services. Mercenary armies and professional civil servants were instead the new key piece of a changing economic and administrative world. Second, what feudal custom did remain in use varied from place to place. The Lombard customs in the Libri feudorum had no necessary similarity to the customs anywhere else in Europe. Yet not only was the Libri feudorum the second most popular private law collection after the Decretum of Gratian, but it also continued to be published, consulted, and commented on by academics and practitioners throughout Europe well into the early modern period.¹⁴

This contradiction within feudalism finds its parallel in the many contradictions that scholars now acknowledge as inhabiting the term. Pennington offers two explanations for the disparities he identifies. First, “written feudal law was largely an academic creation” perpetuated by the pedagogy and tradition of law schools. This suggestion coincides with Susan Reynolds’s argument in her Fiefs and Vassals that the academic law of fiefs was a creation “of a culture of academic and professional law and of professional, bureaucratic government that had developed since the twelfth century,” upon which she builds her contention that this law, read retroactively, has disproportionately influenced medieval historiography.¹⁵ The histo...

Table of contents

• Cover
• Half title
• Title
• Copyright
• Dedication
• Contents
• Introduction
• Part I. Feudalism
• Part II. Secularization
• Epilogue
• Notes
• Works Cited
• Index
• Acknowledgments