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Between the market and the state: the world of medieval cities

BOUDEWIJN R.A. BOUCKAERT** Professor at the Law School University of Ghent

"A community of free persons has a different purpose to one of slaves. For the free personexists for his own sake; but the slave is one whose being belongs to another. If therefore acommunity of free persons is directed by its ruler to the common good, that will be a rightand just government, suitable for free persons".

St. Thomas Aquinas, De Regimine Principum (On PrincelyGovernment) in A.P. d'Entrves (ed.). Aquinas, SelectedPolitical Writings, Oxford, 1954, bk I, ch. 1, p. 6.

"City air sets one free"1 was once the creed of hope for the masses of the oppressed peasantry

throughout Europe. The city was for them a place of freedom, dignity and a chance forprosperity. As the famous French liberal historian Augustin Thierry puts it not withoutpassion : "The bourgeoisie, this new nation whose morality consists of civil equality andeconomic independence, emerges between aristocracy and serfdom. It destroys forever thesocial duality of the first feudal era. Its innovating instincts, its activity, its accumulatedcapital, are forces acting in a thousand ways against the power of land owners. As the casewith the origins of all civilization, the take off starts with urban life" 2.Perhaps a similar tide might pervade the institutions of our present centralized and evercentralizing nation-states. An article in The Economist3, Government by the nice for thenice points out that about thirty million Americans live in privately administeredcommunity associations or condominiums. It draws some striking analogies with the urban

revolution of nearly ten centuries ago by comparing the middle ages to South L.A.! At theend of their article however, the authors cannot refrain from mentioning that the walledcities of medieval Italy were both a symptom and cause of a society plagued by war. By thisthey suggest that the dispersion of political and military power among the medieval citieswas the cause of steady warfare and that a proliferation of the condominium-revolutionmight turn the U.S. into another Bosnia.

This raises a question. How should we appraise the medieval political-urban revolution? Wasit a process of order or of disorder, a tendency towards peace or to war, a movement to ahigher level of civilization or brutality ? To answer this, is the main aim of this chapter. Ialso hope to use the medieval experience to better appraise current similar trends such as the

U.S.-condominium -revolutions, the free-enterprise-zones,the rise of the regionalistmovement in Europe, the self-help organizations in poor quarters of Peruvian cities4.Lastly I want to contribute not only to a historical understanding of a sweeping change in

1 On this rule see H.Brunner,Luft macht frei. Eine rechtsgeschichtliche Untersuchung in Festgabe der Berliner

Fakultt fr Otto von Gierke, I.Breslau,1910,1-46; H.Mitteis, Uber den Rechtsgrund des Satzes Stadtluft macht

frei, in Festschrift E.B. Stengel,Mnster,Kln,1952,324-358.

2

Augustin Thierry, Essai sur l'histoire de la formation et des progrs du Tirs Etat, Paris 1853, reprint

Genve, p. 21. My translation.

3

The Economist, July 25th - 31st 1992, p. 25.

4


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Western civilization, but also to the better understanding of the moral and institutionalrequirements of a free society .

Before dealing with the origins of the medieval urban revolution, I want to make sometheoretical remarks about the broader institutional background, in which this revolution took

place. Such remarks are necessary to understand the meaning of the medieval urbanrevolution for the present debate on the institutions of a free society.

The urban revolution which began in the eleventh century and raged throughout Europeduring another two centuries, was one of the most dynamic elements of the polycentricextended order of the medieval Pax Christiana. In this respect one can compare the secondmiddle ages (1100-1500 AD) with other historic and present orders such as the Pax Romanain its classical phase ( 200 BC-200 AD), nineteenth century laissez-faire Europe, the

present European and North American free trade unions (EU and NAFTA).

By polycentric I understand that the inputs into the social order are given by a variety of

independent, non-hierarchically ordered actors, who are allowed to use their own knowledgeand own means to pursue their goals.Polycentrism is a well-understood notion in regard to economic action (investments, trade,

production, consumption). Here we can rely on the impressive tradition of free market-theory. As the medieval example shows, polycentrism can apply also to legal and politicalmatters.Judicial instances acted often as competing actors vis--vis each other and were involved in

processes of legal entrepreneuring. Political instances, producing collective goods such asdefense, urban infra-structure and urban planning, enjoyed local autonomy. This allowedcompetition by a process of voting with the feet5.

By extended I understand that a variety of independent actors, who may live eventually farfrom each other, who may differ in regard to their language, culture and religion, areinvolved in a vast and complex network of interaction. This network allows for wealthcreation through labor division, trade, innovation and imitation. Again, one can imaginequite well what an extended order means in regard to economic activities. In this respect onecan think of trade networks, monetary systems, international labor and capital markets, etc.An order however, can also be extended in regard to the exchange and the spread of ideas,art, language, law and institutions. Also in this respect the second middle ages meant atremendous progress in comparison to the previous period.

Polycentric extended orders contrast with monocentric orders and restraint orders. In

monocentric orders the inputs have to pass through an hierarchical decision making processof instances, aiming to exert an encompassing control on social evolution. Though the extentof social control can vary according to technical and ideological differences, many, evenextended, orders in history can be classified beyond any doubt as monocentric : the lateRoman Empire (250-400 AD), the Byzantine Empire, the Chinese Empire, the Soviet Union.Restraint orders involve only a limited number of people, mostly geographicallyconcentrated and culturally homogeneous. Though the interaction within the group may bevery intense and socially protective, the wealth-creating propensities of such orders remain

see Hernando de Soto, The Other Path. The Invisible revolution in the Third World, 1989.

5

For this notion see Charles Tiebaut, A pure theory of local government expenditures, 64 Journal of

Political Economy, 1956, 416-424.


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poor due to the low level of labor division and innovation.Historically seen, most tribal societies should be classified in this category. Such a tribalsociety can have a more polycentric character, such as the Germanic tribes, or a moremonocentric character such as the Zulu-kingdom under the rule of Shaka.

The polycentric order of the second middle ages arose out of a period of complete disorder,due to the decomposition of the Carolingian empire. Why did this period of chaos not evolveto a monocentric order, as for instance often the case in China, where periods of chaos werefollowed by periods of strong and centralized autocracy?The answer must be complex and lies beyond the ambition of this chapter.For a good understanding of the background of our subject however, two important remarksshould be made about the emergence of the medieval pax Christiana.

First, polycentrism was certainly not the model, authorities had in mind when ruling theirsociety. As probably most rulers, also the medieval authorities, as emperors, kings, dukes,courts, abbots, city magistrates as the pope as well,

wanted to extend their power as far as possible. Once some causes of the previous disorder,such as barbaric invasions, Islamic attacks and feudal warfare had disappeared, they tried tobuild up their administrative structures, to curb down the privileges of the barons, themonasteries, the church and the cities. Sometimes they succeeded thoroughly in this attempt.Frederick II (1194-1250 AD), emperor of the Holy Roman Empire, submitted Sicily to atotalitarian rule, which was later on considered by the SS as a praiseworthy model6.But alsomore moderate rulers such as the Normandic dukes, the Flemish counts, the kings of Englandand France attempted steadily to extend their power. Also the popes, whose actioncontributed a lot to the limitation of secular power, were not free from the quest for a fulltheocratic rule. So, we should not look for the origins of medieval polycentrism in theintentions and the ideological projects of the rulers, but rather in the complex interplay of

competing power centers, of which polycentrism was one of the unintended consequences.

Within this interplay we can however distinguish one factor as a key-element : the so-calledpapal revolution. This revolution started in the late eleventh century and was inspired by theCluniac monk Hildebrand, the later pope Gregory III (1073-1085 AD). According to thisnew papal ideology the church was entitled to claim a libertas towards the secular rulers,while the latter had to submit to a higher system of values and rules, articulated andinterpreted by the church. As Harold Berman points out in his impressive book Law andRevolution, the papal revolution constituted the religious and intellectual legitimacy for theautonomy of a wide variety of medieval institutions7.Bishops, monasteries, chapters,universities and cities put themselves under the authority of the pope in order to emancipate

themselves from the authority of their secular rulers

8

. By this a close and often militarily

6

On Frederick II see Thomas C.Van Cleve, The Emperor Frederick II of Hohenstaufen : Immutator

Mundi, Oxford 1972; see also Harold J. Berman, Law and revolution. The Formation of the Western Legal

Tradition, Harvard University Press, Cambridge, 1993, 425.

7

see Harold J. Berman, ibid., 85-119.

8

On the emancipation of the abbey of Cluny from its secular lords by the Papal Bulls of Gregory V

(998 AD) and John XIX (1024 AD), see Dominique Iogna-Prat, Entre Anges et hommes: les moines

doctrinaires de lan Mil in La France de lan Mil, Edition du Seuil, Paris, 1990, 249; on the autonomy of the


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powerful master was substituted by a remote and rather spiritual father. To put it otherwise:effective secular rule was often replaced by theoretical theocratic rule.

On the other hand, this polycentralization of medieval institutions, largely stimulated by thepapal revolution did not atomize medieval society in multiple restraint and self-sufficient

orders, for the different autonomous actors shared a common belief in christian values andlegal principles. This common belief facilitated the development of the vivid interactionwithin the communitas Christi of medieval man.

The urban revolutions of the eleventh and twelfth centuries, certainly one of the mostremarkable explosions of economic and social energy, took place within this background ofa polycentralization under the same set of christian values.

Section I Conceived in liberty: communes, gilds and hansas

Historians generally agree that there was spectacular growth of urban population in Western

Europe from the eleventh century until the peak of the black death in the middle of thefourteenth century. Harold Berman estimates that urban population rose from about 1 % in1050 to 10 % in 12009. Paris for example expanded from 20.000 in 1050, to 110.000 in1200, to 150.000 in 1330; Cologne from 21.000 in 1050 to 50.000 in 1200, to 54.000 in133010. In fourteenth century Flanders about a third of the population lived in large citiessuch as Ghent ( 50.000), Bruges ( 40.000), Ypres ( 30.000) which are located within anarea of no more than 800 square miles11.

Several sources of this rapid urbanization can be identified. These include 1) the revival ofinternational trade due to the clearing of the Mediterranean coasts of southern France and

Northern Spain from the Saracens, so that the trade networks of the former Frankish Empire

and of the Mediterranean sea could be connected

12

; 2) the agricultural productivity increasesof the end of the tenth and the beginning of the eleventh century, by which a larger non-farming population could be sustained13; 3) technological innovation of industrial production.A case in point was the replacement of the vertical weaving loom, the so called "gynaecea",

by the horizontal one which spurred growth in the cloth-industry . This change in the supplyof cloth made it attractive on wider markets so that production moved from the country-side

universities under the papal umbrella, see J.Le Goff, Les intellectuels pendant le moyen ge, 3 Le Temps qui

court, Gallimard, Paris, 1957.

9

Harold J. Berman, ibid.,335.10

Paul Bairoch, Jean Batou et Pierre Chvre, Les Populations des villes Europennes de 800-1850,

Librairie Droz, Geneva, 1988.

11

R. Van Uytven, "Stadsgeschiedenis in het Noorden en Zuiden", in Algemene Geschiedenis der

Nederlanden, II, 200.

12

Henri Pirenne, Histoire Economique de l'occident mdieval, Bruxelles, 1951, 184.

13

Harold J. Berman, ibid., 334. Adriaan Verhulst, "Occupatiegeschiedenis en landbouweconomie in het

Zuiden circa 1000-1300", Algemene Geschiedenis der Nederlanden, II, 95-96.


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to urban centers 14.

Although such factors undeniably contributed to urban growth in medieval Europe, they donot tell the whole story. The take-off of city life was contemporaneous with and probablyencouraged by important constitutional changes. When taking into account the full economic,

technological, religious, moral and legal background against which the urban revolutionoccurred, it is impossible to isolate ultimate or independent factors from dependent ones.

Undeniably one of the most important of these factors was the Peace of God and the Truce ofGod15. The Peace of God, originally called the pax Ecclesiae, forbade warfare or violenceagainst ecclesiastical properties, some categories of persons, such as clerics, pilgrims,merchants, women and peasants and against cattle and agricultural implements.The Truce of God or Treuga Dei implied the prohibition of every act of private warfareduring certain days of the week.

Both the Peace and Truce of God were reflective of the new value system which flourished

during the eleventh century. They expressed a reappraisal of a lifestyle, basing it on laborand trade, and not on pillage and warfare. They expressed also a changed view of class-relationships, in which the so called third estate was no longer regarded as the inbellevulgus (infamous populace) destined to sustain the knights (bellatores) and clerics(oratores), but as a the people (populus), living and working for its own dignity.

A second and equally important development was the revival of associative life. To clarifythis historical movement we should mention the distinction between a natural, imposed andvoluntary association16. The natural associations par excellence are families and kinship-groups. Their cohesion rests on deep emotional ties imbibed, so to speak, with mothers milk.

Imposed associations are based on coercion: the members of them have to serve in thembecause of threat of violence. Examples are tantamount: the state, the army, monopolisticpublic schools, state-churches, communist and national-socialist youth-leagues, etc.Voluntary associations are based on the deliberate choice of the members, who have thefreedom to join or not to join, to stay or to leave. The level of occurrence of suchassociations in society are an indication of civilization: they express the ability to cooperatevoluntarily with strangers, i.e. people outside the close family-circle. The more voluntaryassociative life is rooted in social mores, the more a society will be able to solve all kind ofsocial problems, without relying on coercion. Voluntary associations are the life-blood ofwhat Albert Jay Nock once called social power, the real antagonist (not the isolatedindividual) of the state17.

14

P. Vaczy, "La transformation de la technique et de l'organisation de l'industrie textile en Flandre aux

XIe - XIIIe sicle", in Studia Historica Academiae Scientorum Hungaricae XLVIII, Budapest, 1960.

15

About the Peace of God and the Truce of God, see Harold J. Berman, ibidem.

16

For this distinction, we are indebted to Philippe Nemo, who made it in a still unedited paper on The

History of Rule of Law in Hayeks Constitution of Liberty and the problem of a liberal philosophy of history,

Hayek Symposium Ethics and Institutional Reform, Ghent, march 1994.

17

Albert J. Nock, Our Enemy The State, Free Life Editions, New York, 1973.


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The origin of voluntary associations can be traced back prior to the middle ages. AmongGermanic peoples it was common to form gilds, i.e. groups of men, forming an artificialfamily, bound together by ties of rite and friendship, offering mutual support to its membersupon payment of their entree fees. These mutual support groups remained important during

Merovingian and Carolingian times under names such as gildonia, confratriae orconvivia, and were the direct predecessors of the medieval craft and merchant "gilds"18.During the early middle ages, the suspicion of free associations, dating back from the lateRoman Empire, persisted among the ruling elites, although most of Germanic associative lifeadapted fully to Christianity19.

Several factors encouraged a change in this attitude after the eleventh century. First, theinternal church structure evolved more towards free associations as the cathedral chaptersobtained new powers to elect bishops. In the Decretals the chapters were given considerable

power over the bishops, while the canonists developed a generous doctrine of the rights ofcommunities (universitates)20. Second, the legal tradition of the "ius commune", i.e. Roman

law as interpreted, completed and adapted by learned medieval jurists, evolved to moreliberal views on association. In general, jurists adopted the principle that all freely constitutedassociations were permitted, provided their goals were just and laudable. The restrictions ofthe Digest were circumvented by interpreting the list of exceptions to the rule, for which

permission of the sovereign was required, not as an exclusive, but as an instructive list21.

The changing ideological attitude towards free association happened at the same time as areal explosion of associative energy on all levels of medieval society. On the more religiousside we should mention the urban revival of monastic life and the birth of regular clergy suchas the Dominicans or the Franciscans. It was also reflected in the increased activity ofchapters and cathedral schools, which later developed into universities, but were at first

merely clubs of teachers and students

22

. On the more secular side, though the line cannot beeasily drawn, should be especially mentioned the merchant gilds and craft gilds orcorporations, the hansas, and, last but not least, the famous communes.

From the eleventh century, the previous constitutional pattern of the city underwent arevolution , due to that remarkable social phenomenon of the commune, which was at itsturn undeniably influenced by the associative movement and the Peace of God.

The commune was the sworn community of the city-dwellers. Its aims were multiple: toliberate the community from feudal lordship, to provide material aid, collective goods, andregulate the behavior of its members23.

18

Antony Black, Guilds and Civil Society in European political thought from the twelfth century to the

present, Cornell University Press, New York, 1984, 4.

19

Antony Black, ibid., 5.

20


21


22

see J. Le Goff, ibidem.

23


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The commune was more or less a territorial phenomenon. Nevertheless, some city-dwellers, such as foreigners, Jews, clerics or knights were excluded from membership24. Thecommune differed in this respect from the merchant gild, which grouped only themercantile elite of the town. Merchant gilds were the direct continuation of the olderGermanic social gilds. They were also based on ritual oaths, organized ceremonial drinking

and communal feasting and collected money to provide mutual aid25

.Though very close to the gild, the hansa was different. The latter was an association ofmerchants travelling long distances and providing mutual protection by pooling defense andother risks26. There could be more than one hansa in a town, and merchants of several townscould be member of the same hansa. Over time, hansas of several cities merged, such as forinstance the Flemish hansa on London, and later on the famous German hansa27.

It is very likely that these merchants associations formed the caucus of the commune, theassociation of all city-dwellers. Like all older associations they were sworn communities, asreflected sometimes by the name coniuratio. Other names were amicitia, or pax28. Thesworn character of the commune was, for instance, symbolized by the election ceremony of

the capital portmen of Ipswich by the whole community and during which the portmen hadto swear to safeguard the borough and its character29. Also in the early Italian cities it was thecustom to consult the general assembly of full citizens (consilium maius, arengo,parlamentum, adunantia generalis) for all important matters of war and peace30.In Germany, the general assembly of the commune dealt with military matters, taxationand the admission of new citizens. All adult male urban citizens were expected to swearobedience to the laws, allegiance to the rulers and fidelity to treaties and alliances contractedwith other rulers or cities. In many towns the communal oath was renewed annually or atregular intervals, such as for instance on the Schwrtag (oath-day) in many towns31.

On the place of notions such as communis, communitas, universities,societas in medieval

political philosophy see Antony Black, The Individual and Society, in J.FH. Burns(ed.), The Cambridge

History of Medieval Political Thought, Cambridge University Press, 1998, 588.

24

R. Van Uytven, ibid., 204, 225.

25

Antony Black, ibid., 12-31.

26

Hans Van Werveke, Les villes belges, Histoire des institutions conomiques et sociales, Recueils

Socit Jean Bodin, II, 571.

27

For an intresting economic approach to the hansas, see Avner Greif, Paul Milgrom and Barry

Weingast, The merchant gild as a nexus of contracts, John M. Olin Program in Law and Economics, Working

Paper nr. 70, october 1990.

28

R. van Uytven, ibid., 214.

29

Harold J. Berman, ibid., 47.

30

Antony Black, ibid.,47.

31



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From the eleventh century on a series of bitter struggles broke out in the many cities ofwestern Europe. The revolt spread through the cities of northern France and Flanders,through the north of Italy, and later reached Germany. They also found their way toEngland, but here in generally, conflicts were settled by the king in a more peaceful way32.Several examples of this urban revolt can be cited. In Lige, troubles with the bishop were

already signalled in 957/971 A.D., but we are certain about a commune in 1060; in Cambrairevolts by the commune occurred in 958, 1077, 1138, 1180 33. With some desperation theauthor of the Gesta Pontificium Cameracensium reported in 1138 about the city: Andfinally, what should I report about the liberty of this city ? Neither the bishop, nor theEmperor levies taxes over there ! No one is entitled to exact any contribution from the city !Its militias do not march out, except then for the defense of their own city and, what is evenmore shocking, only in such a way that they are able to be at home on the same day !34

The Rhine cities revolted as early as 1070; in Italy the commune movement reached its peakin the 1080s. By the 1120s the Flemish cities had rebelled and received in 1127 chartersfrom count Dirk of Alsace35. By the end of the twelfth century the urban revolt had achievedits major aims. Most urban centers of some importance had obtained a charter from their

lord, in which the revindications of the citizens about their new constitution were more orless satisfied. Before analyzing the major tenets of these new constitutions, the links betweenthe urban revolt and the Peace of God movement should be emphasized.First, the communal movement was particularly strong and arose earliest in religiouscenters from which the Peace of God and Truce of God movement were started. A majorexample was Cambrai, a bishops see and a theatre of stormy revolts.Second, many charters literally copied the Peace of God decrees regarding the special

protection of merchants.Third, the charters also provided for a Peace of God-protection for the market, i.e. the placein the city where goods were exchanged and protected by the Holy Cross of the Peace of themarket36.

Section II : Medieval cities as centers of polycentric law

Much like monetary matters, law is a field in which polycentrism has gained little credibilityamong intellectuals. Even among most liberal scholars the creed one state, one currency andone legal system still prevails37. The legacy of Thomas Hobbes, as reformulated by Hans

32

see Pollock and Maitland, History of English Law, Vol. I, Cambridge University Press, 1985, 634-

688.

33

see R. Van Uytven, ibid., 214; Antony Black, ibid., 45; Harold Berman, ibid., 386;

34

quoted by R. Van Uytven, ibid., 214.

35

See Raoul C. Van Caenegem, De keure van Sint-Omaars van 1127, The legal history review, 1982,

253.

36

See R. van Uytven , ibid., 215-216.

37

For a review of the literature about polycentric law, see Tom W. Bell "Polycentric law", 7 Humane

Studies Review, 1.


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Kelsen 38, continues to prevail.The civilized middle ages however, lacked a monopoly on law-making while polycentriclaw-making systems continued to function up till the French revolution.To avoid misunderstanding it should be stressed that polycentric law-making entails morethan a mere plurality of law-making centers. Suppose that the present legal system in the

U.S. were replaced by fifty independent fascist states, allowing neither trade nor freemobility of citizens. Could this be called a polycentric law-making system ? Of course not. Itwould only be a collection of fifty monocentric legal systems. Properly speaking, a

polycentric law-making system, is one with different centers of law-creation involved in oneand the same extended order of patterns of human actions. These different centers serve thelong-term-stability of this order by applying rules of conduct which may originate fromcertain parts of this order, but spread because their application yields satisfactory resultselsewhere. They succeed not only by solving conflicts at a primary level, i.e. betweencitizens, but also on a secondary level, i.e. between competing jurisdictions, applyingdifferent standards of judgments and by conflict resolution when different jurisdictionscollide about the necessity or the severity of punishment. Much more theoretical aspects of a

polycentric lawmaking system could be raised, such as for instance whether such a systemrequires territorial monopolies in rule-making and/or adjudications. This falls beyond thescope of this article39. For now, it is sufficient to note that the notion of polycentric law-making only makes sense when it is related to the notion of the extended order of actions.

The Hobbesian-Kelsenian view on legal systems also suggests a historical fatalism about theproper methods of enforcement and punishment . It implies that polycentrism is an imperfect,chaotic and uncivilized situation and must necessarily lead to the higher phase ofmonocentric state made law. Indeed, there are several historical examples, which illustratesuch an evolution. Their occurrence alone however does not prove their pretended, deeper,"Hegelian" rationality . Moreover, other historical examples could be mentioned where the

opposite happened, without regression into disorder and brutality, as in the emergence of themedieval cities as autonomous law-making centers.

The political autonomy of a city and the freedom of its citizens was usually solemnlyrecognized in a charter or privilege, granted by the secular or ecclesiastical lord. The charteroften recognized the legislative power of the city magistrate while at the same time alsostating the most important legal rules for the burgesses. In many charters, such rules arementioned as "consuetudines", i.e. customs of the realm40. So, we may suppose that many ofthese rules were already established in practice before the charter. In most cases, citiesacquired de facto legal autonomy long before they obtained charters. By modern standards,this chartering should have meant a dramatic splintering of legislative authority.

One has only to look to the map of Europe of the thirteenth century to notice the prodigiousproliferation of chartered cities. Yet this did not lead to a mosaic of urban legal systems. Infact, newly chartered towns often took over the rules and institutions of older cities, or inmany cases cities adapted their urban law to facilitate dealings between their citizens41.

38

See Hans Kelsen, The Pure of Theory of Law, University of California Press, Los Angeles, 1970.

39

For a more theoretical approach see Randy F. Barnett. "Pursuing Justice in a Free Society", Criminal

Justice Ethics, Summer/Fall, 1985, 50; Winter/Spring, 1986, 30. For other literature, see Tom W. Bell, ibidem.

40

See R. Van Uytven, ibid., 218, mentioning numerous charters of Flemish cities.

41


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Polycentrism is not the opposite of uniformity. It only guarantees that it should be theoutcome of a mutual and voluntary adaptation by different authorities, who experienced therules and institutions concerned as an improvement.To give an idea of the legal evolution, brought about by the urban communities, we will look

briefly at the main tenets of urban law, especially in the Flemish cities.

In regard to personal status, urban law nearly always provided for the generalization of a freestatus. Serfdom and a fortiori slavery, were irreconcilable with the status of a burgess42.We should add however that the liberalization of personal status did not remain confined tocities. It spread also to numerous village communities43. In coastal Flanders, called Francde Bruges, feudal status was rather the exception than the rule among the peasantry44. Theliberalization of personal status should be seen rather as part of a broader emancipationmovement,which was reflected in changes in manorial law45.

In regard to property rights on land and real estate within city confines urban law implied"allodiation", i.e. a "return" to the older, Germanic legal position of "Gemeinfreie" 46 private

property. The land and buildings used for common purposes, such as the city-hall, theexcercition drill-grounds, the mills, the common fields, etc., were considered commonproperty, belonging to all citizens.The liberation of the land within the cities occurred in a variety of ways. In Ghent forinstance, where the city land belonged to the St. Peters- and St. Baafs-abbeys, and wherecitizens had to pay a tribute to them, the local merchant gild of the city collected enoughmoney to redeem the tribute in 105047.The real estate of the allodial owners was sometimes extremely large due to the fact that theoriginal owners still exploited a farm there. Later, they could earn enormous sums by rentingsmall lots to numerous tenants.

In regard to contract law, the provisions of the cities and the decision of the magistratesreflect a gradual infiltration of Roman and common law. The principle "ex nudo pacto actionascitur", which liberated the formation of a contract from formalities, for example, appearedfrequently in various urban laws48. Another common evolution involved the rules of the

See Harold J. Berman, ibid., 371. The most known example of such a "family" of urban legal systems

is the "Magdeburger Recht". The rules of the city of Magdeburg, a city on the river Elbe, disseminated over

eighty new cities !

42

See F.L. Ganshof, "Le droit urbain en Flandre au dbut de la premire phase de son histoire (1127)",

Tijdschrift voor Rechtsgeschiedenis, XIX, 1951, 400; R. Van Uytven, ibid., 204 and 220.43

John Gilissen and Ivan Roggen, ibid., 224.

44

J. Mertens, "De landbouwer in het Zuiden 1100-1300", Algemene Geschiedenis der Nederlanden, II,

108-109.

45

J. Mertens, ibid., 107-122; Harold J. Berman, ibid., 316-322 about the evolution of manorial law.

46


47

Frans Blockmans, Het Gentsche Stadspatriciaat tot omstreeks 1302, Anvers-La Haye, 1938, 130-136.

48


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execution of a contract. While in older customary law an execution on the person of thepromisor was the standard, urban law tended to replace this by an execution on the patrimonyof the promisor49.

The difference with the law, prevailing on the country-side, was most pronounced in the law

of evidence. In general, cities abolished, once they had the chance to, different forms of theordeal, especially trial by combat. In the charters of Ypres (1116), St. Omer (1127) , Tournai(1187), Grammont (1190), Lige (1208), Ghent (1297), Bruges (1304) the duel is excludedand forbidden as a means of evidence50. Did the hostility of the burgesses to trial by combatresult from utilitarian concerns?The urban population was less trained in fighting, so they would be on average inferior insuch trials. This explanation suffers, however, from some major weaknesses. First, althoughless imbued with a culture of violence than the chivalry, the burgesses remained familiar withthe handling of arms through the militias and the practice of the feud. Second, the lawallowed litigants in most cases to send instead a champion of combat, so that the wealthy

burgesses have a chance in combat.

The prevailing concern with public peace is the more likely explanation. This concern wasalso reflected in the decrees of the Peace of God and the policy of city authorities towardsthe blood feud.The ordeals were in general replaced as means of evidence by written documents and bywitnesses51.

In regard to jurisdiction, charters granted cities the privilege to constitute their own court of"scabini". This court had a very wide competence. It could decide about what we now callcivil or common law matters such as real property, contract, inheritance law, matrimonialcontract, but also in matters of the criminal law52. This latter power was however limited bythe action of the paisieres53. Moreover, in the Flemish cities the "scabini" also had

competence in taxation and administrative matters. It is quite likely that the lack ofseparation of power contributed to the class-struggles of the fourteenth century54.The city-court of the "scabini" often acted also as council for cities, whose law was derivedfrom theirs. It could also act as a court of appeal for lower courts such as those of the gilds55.


49

John Gilissen and Ivan Roggen, ibid., 278 and 280.

50

John Gilissen and Ivan Roggen, ibid., 279; see also Raoul C. Van Caenegem, Het Strafprocesrecht in

Vlaanderen, van de XIe tot XIVe eeuw, Brussel, 1956, 122.

51

See Ph. Godding, "Les conflits propos des lettres chevinales des villes Brabanonnes (XVe-XVIIIe

sicle)", Tijdschrift voor Rechtsgeschiedenis, t. XXII, 1954, 308.

52

R. Van Uytven, ibid., 224; Raoul C. Van Caenegem, Het Strafprocesrecht in Vlaanderen, XIe-XIVe

eeuw.

53

See below, Section IV.

54

See below, Section V.

55

R. Van Uytven, ibid., 224.


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Although the competence "ratione materiae" of urban courts was very wide, in most casesthey did not have a territorial monopoly within the city . Especially the ecclesiasticalenclaves of churches, cathedrals and bishops' palaces could maintain their own jurisdiction

based on canon law. Ecclesiastical courts were not restricted to matters of religion. They alsoclaimed jurisdiction in the so-called "materiae mixtae", such as inheritance law linked with

testaments, contract law linked with jurisdiction over pledges of faith, criminal and tort law,linked with jurisdiction over sins. The ecclesiastical courts also offered their services to allparties in dispute, who wished to choose them, by prorogation. There is no need to add thatthis extensive interpretation of ecclesiastical competence often led to conflicts with thesecular urban courts56.

To summarize, the polycentric evolution in law-making by many urban authorities, illustratesthat an overall order of action does not require a centralized legal system, operated by anation-state. This runs contrary to the 19th century view of continental liberalism which heldthat the nation-state was the sole vehicle for the preservation of the legal order, subservient tothe market order57. The polycentric character of medieval jurisdiction also shows that the

medieval extended order of actions rested ultimately, not on a single and uniform system oflegal institutions, but on a common set of values, i.e. the values of western Christendom asenriched by classical philosophy and Roman and Germanic legal tradition.

Section III : Defense and peace : cities as protection agencies

The polycentric order of the civilized middle ages extended also to the possession of armsand to the freedom to decide about their use . This situation of decentralized armamentexisted on two levels, first, between cities and other armed political entities such as kings,counts, bishops and other cities; second, among the citizens of the city itself, because mostcharters guaranteed that burgesses should keep the right to bear arms publicly. Articles 70

and 71 of the Great Charter of Ghent of 1295 provide for instance that burgesses have theright to bear swords but not knives, because they could be hidden58.

This quite radical dispersion of arms provokes among modern mainstream intellectuals twofundamental questions. The first is classically Hobbesian : does the proliferation of armsinevitably lead to the war of all against all?Such a situation evokes terrible pictures of long lasting and murderous civil, tribal andfactional wars, such as during the already mentioned Merovingian times, the warlord-periodsin China, the recent war in Lebanon, the present wars in Somalia, Bosnia and Rwanda.

The second point concerns the provision of optimal defense. Because defense has quite often

the character of a public good, it will be either impossible to provide it, or it will at least, beproduced at a suboptimal level. Everybody will try to take a free ride on the joint defenseefforts of the others, so nobody will be ready to voluntarily join a militia, while such jointefforts could be the best way to provide adequate defense59.

56

Harold Berman, ibid., 223.

57

About the link between 19th century "legal" liberalism and the belief in the nation-state, see

Boudewijn Bouckaert, De Exegetische School, Kluwer, Antwerpen, 1971.

58

Coutumes de Flandres, T.I., 454.

59


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Members of all societies face the risk of being injured, wounded, robbed, raped or killed byother members. In historical and sociological literature basically two methods are describedto cope with the problem of internal aggression and violence : one relying on the natural

associations of the family, namely the blood feud, one relying on the imposed association ofthe state, namely the machinery of criminal law. The first is considered primitive, barbarianand uncontrolled , the second rational, civilized and orderly . Reliance on the third form ofassociation, the voluntary, is mostly overlooked here. Nevertheless the evolution of criminallaw in Flemish cities provides us with an impressive historical example of maintaining lawand order through the discipline of the voluntary group.To put this evolution in its proper historical perspective, something should be first said aboutthe principles, on which the blood feud-system rested until about 1100 60.

The blood feud was in the first place based on the right, and in fact the need for self help.When an individual suffered injury, one had the right to retaliate by inflicting proportional

harm, according to the biblical saying "an eye for an eye, a tooth for a tooth". The other partycould always offer to buy off the right of retaliation and pay damages, the so calledcomposition. "Bugge spere of side other bere" (buy off the spear from your body or bear it)the leges of Edward the Confessor stated61. The amount was usually fixed by custom.

Second, the blood feud involved the solidarity within the broader family or kinship group,the famous Germanic "sibbe". Family members had to protect each other and participate inretaliatory raids and were held jointly liable for the payment of the damages, agreed in thecomposition62.

Third, it was common to respect a forty day peace-period ("quadragena", "quarantine") for

the family members of the directly involved parties. By this the circle of potential fighterswas for a time drastically restricted . As well as quarantine, parties could always voluntarilyconclude a truce ("treuga") to provide for a cooling off period 63.

Fourth, it was common to give hostages in order to guarantee respect for the "treuga".Members of the hostile family were then kept as prisoners . When the treuga was notrespected the hostage-taking family was allowed to kill, injure or enslave the hostages64.

National defense is nearly invariably listed among the public goods, impossible to be produced in a

voluntary way. For a penetrating criticism see Frank Van Dun, "Public Goods from the market", 4 Economic

Affairs, July-September 1984, 28.

60

With regard to this subject, we shall rely nearly exclusively on the excellent study of Raoul C. Van

Caenegem, Geschiedenis van het Strafrecht in Vlaanderen van de XIe tot de XIVe eeuw, Brussel, 1954. Though

this book deals with the criminal law in medieval Flanders in general, much attention is spent on the fascinating

subject of the blood feud and its evolution into more civilized forms of justice.

61

Raoul C. Van Caenegem, ibid., 234.

62


63

Raoul C. Van Caenegem, ibid., 250, 253.

64


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Finally, when a composition was reached hatred and violence gave way to a positiverelationship of friendship between the families. Stability was established for a long period

between the formerly warring kinship-groups65.

The blood feud, based on these principles, prevailed in Flanders and also in other parts ofwestern Europe, until the end of the eleventh century. After that, the situation changed in twomajor respects. First, the Flemish counts, who could be compared with the kings of Englandas strong rulers, gradually built up their system of criminal law jurisdiction, and tried to

pacify the country-side by a system of sometimes cruel punishments . This line of evolution,supported by the imposed association of the sovereign prince wit state-power, is the remote

predecessor of the present apparatus and praxis of criminal law.

In the Flemish cities however, the evolution took another form.As far as injuries, inflicted by strangers on members of the commune were concerned, theright to self-help was transferred from the natural kinship-group to the commune itself,

which considered itself as a large artificial family. The charters and citizens'oaths generallyrequired that citizens assist each other to defend their fellows when attacked, or to organizeretaliatory actions. Each citizen had the right to call for help from other citizens ("faire lecri") by shouting words like "commune", "bourgeoisie" or "ville", or by ringing the alarm-

bell. In the event that one of the burgesses was kept in prison outside the city or if theproperty of one of them was robbed or seized against the charter or any agreement of thecommune, then the citizens had the obligation to act "extra muros" in order to rescue or toavenge their fellow66.

In regard to injuries, inflicted by burgesses on other burgesses, the communes continued toconsider them as an interparty struggle, as a private crime, but took several steps in order to

control the negative impact of blood-feuding on public order. Here lies the crucial differencewith the criminal policy as developed by the counts. This latter policy considered crime as apublic affair and the legal conflict, arising from the crime, as a conflict between the publicauthority and the criminal. The cities respected the inter-individual or inter-family characterof the conflict, but, consistent with their peace-philosophy, made major efforts to controlretaliation and to arrive at a peaceful solution.

Hence many charters bestowed on city authorities the competence to order a truce ("treuga)between warring parties, on demand of one of the parties or on their own authority. The trucehad in principle a temporary character. It could be made permanent in fact until compositionhad been made by a periodical and general reaffirmation of the truces between the conflicting

parties within the city.A breach of such a truce could be punished by severe sanctions such as heavy fines, longbanishment, burning of houses, or even capital punishment67.


65


66

Raoul Van Caenegem, ibid., 184, 241. Of course, violence was not the only way by which the

burgesses of a city reacted "extra muros" in order to retaliate in support of the rights and privileges of one of their

fellows. In many cases more peaceful ways were preferred such as a common boycot by the gilds, which was

sanctioned with severe ostracism. (see Avner Greif, Paul Milgrom and Barry Weingast, ibidem).

67


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Second, the cities maintained the institution of hostage taking but they civilized it graduallyby reorganizing it. To protect helpless hostages from uncontrolled acts from the hostage-taking party, they had to stay in a city-prison or hostage-house, where they were oftenallowed to continue to work. Cities even extended hostage taking from a mere guarantee of

the truce to a means of pressure to make a composition68

.

Third, the city authorities offered their services to warring parties to mediate in the conflictand to reach a reconciliation and composition. In the beginning the court of "scabini"mediated. This task was later taken over by specialized persons, the so-called "paisieres" or

peace-makers. They were persons, selected for their reputation and moral authority. Theyoften included priests or monks, retired judges, deans of a gild, etc. The payment ofcompensation was the basic sanction for the committed crime69. Often an additional amounthad to be paid to the mediating officer, but this was essentially for the costs of mediation andnot for a so-called "injustice to society".

Fourth, solidarity within family ties and the ensuing joint liability underwent some changes.Even under primitive and customary blood-feud-law, kinship-members had the right toabjure responsibility for criminal members of their kinship-group. It is clear that the decisionto abjure was the outcome of a trade-off : face the risk of retaliation from the kinship-groupof the victim or lose the protection of your own kinship-group70. The more peaceful sociallife is in general, the more likely it is that people will abjure responsibility from the crimes oftheir family members. Abjuration probably increased substantially within the cities, due tothe more peaceful atmosphere from the twelfth century on71.Moreover, cities kept registers of abjurations, which must have permitted them to keep tabson the most dangerous and most warlike residents .They also limited the liability of family members when the victim was not a citizen. This

evolution illustrates well that the commune considered itself as an artificial family, assistingits own members and endeavouring for peace among its own members. Unless they had anagreement with other political entities, they did not consider themselves responsible for

providing justice to outsiders72.

At the end of the fifteenth century the settlement of conflicts by paisieres declined rapidly.The reason for this is clear : the cities had lost their political autonomy. Criminal courts,organized by the Burgundian, and later the Habsburg sovereigns had assumed the socialfunctions of the "paisieres". Because the sovereign outlawed the blood feud, self-help,kinship-solidarity and joint liability , the activity of the "paisieres" had lost its reason forexistence. Finally the state had succeeded in its aim to expropriate the conflicts between its

citizens.


68


69


70


71


72



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Section IV . Defense of the city against military agression.

Cities managed to provide a well-organized defense. At times, they even became dominantmilitary powers themselves, using this opportunity to exploit the surrounding country-side.

The main line of defense were their walls and the famous city militias.While the population of the feudal city sought refuge by fleeing into the castrum and leavingtheir assets behind, the charters of the new autonomous towns provided the right to erectwalls around the territory inhabited by the members of the commune. In case of populationgrowth, cities often purchased surrounding land, which was then enclosed by larger walls73.The walled city would remain a picture, typical of the landscape of Europe until thenineteenth century. After the destruction of city autonomy during the sixteenth century, cities

became a part of "national defense". In the nineteenth century , the chief reason formaintaining city walls was to facilitate the raising of local taxes.

The building and repairs of the walls were financed by communal taxation. In many Flemishcities the fines, imposed for breach of the different peaces, paid for the repair of thewalls.Thus, revenues and expenses became linked by an underlying peace-philosophy74.

Through their oaths the citizens also committed themselves to serve in the city militias whennecessary for the defense of the town. In many cases, intermediary organizations, especiallythe craft gilds or the quarter-committees were used to organize the militias 75. By this theyeffectively used the organizational structure and mechanisms of social control to prevent freeridership. The disadvantage however, was that the separate gild militias sometimes becameengaged in bitter class-wars within the cities.Due to their social cohesion the city militias became a redoubtable military force in western

Europe. On many occasions, they clashed in battle the feudal armies raised by kings or otherfeudal lords. Sometimes they gained spectacular victories over monarchs with absolutistByzantine dreams, thus hindering the development towards monocentrism.Examples, which deserve to be mentioned are : the battle of Legnano in 1176, where theLombard league, an alliance of Guelph and pro-papal cities, defeated Emperor FrederickBarbarossa; the battle of Kortrijk in 1302, where the Flemish army, consisting chiefly ofcity-militias of Bruges, Ypres and Ghent, defeated the French army of Philip the Fair, anarmy composed by the "fine fleur" of French "chevaliers"; the battle of Morgarten of 1315,where the militias of the Swiss League ("Eidgenossenschaft") defeated the imperial army ofthe Habsburger Leopold, brother of Emperor Frederick III76. These and other wars and

73

R. Van Uytven, ibid., 200; see also Lon Zylbergeld, LInitiative communale dans lorganisation

dfensive et les institutions militaires des villes en Brabant au Moyen Age. LInitiative publique des communes

en Belgique, Crdit Communal, Bruxelles, 1984, 287.

74

Lon Zylbergeld, ibid., 304.

75

R. Van Uytven, ibid., 244; Lon Zylbergeld, ibid., 362.

76

It is true that the "Eidgenossenschaft" counted mostly non-urban members. Besides Zurich also

nobles from Schwyz, Obwalden and Nidwalden, and free communities of peasants of Schwyz participated in the

alliance. The analogy with the Italian and Flemish battles resides however in the quest for independence and


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battles show that the cities and their militias were not a fringe phenomenon in medievalsociety. They also constituted a military power, which was able to tilt the political power-

balance in a certain direction. It is certain that without the cities and their military strength,Europe would have suffered from a much more thorough, more widespread and a longer

period of absolutism. Thanks to the courage of the city militias entire regions, such as

Switzerland, the North of Italy and the Netherlands escaped an absolute monarchy. Theseregions are still the most open, least centralized and most prosperous parts of Europe77.

As shown by these historical events, cities were not only able to raise effective armies, butalso form effective alliances in order to ward off military threats. Beside the Italian andSwiss examples, it is also worth mentioning the growing cooperation between Flemish cities,and later between all cities in the Low Countries during the fifteenth and sixteenth century. Itis true that sometimes wars broke out between the cities themselves as for instance betweenBruges and Ghent. However, it is still true with the growing threat of the central power of theBurgundian duke, they were able to form stable alliances and to offset the danger ofcentralization.

Notable cases of military cooperation between cities in the Netherlands involved thecommon organization of convoys, protecting Netherlands merchant vessels against Frenchor English acts of piracy in 1437-1454; the raising of an army in 1491 in order to clear thecountry from mutinying mercenaries of the Habsburg king, brought in to "protect" the

Netherlands against the French78.

Section V : City government, finances and the public domain

How should we classify the political constitution of medieval cities in the light of broaderhistory ? The different historical schools in general agree that these constitutions were anelement in historical progress, but differ widely about the nature of that progress79.

According to the classical liberal view, as brilliantly developed by Augustin Thierry, cityconstitutions were a major step forward toward individual liberty and "bourgeois" equality,

because they originated through voluntarism and Wicksellian unanimity.

decentralization by the members of the Swiss League.

77

These regions are often denominated "Lothars banana referring to Lotharius, Charlemagnes'

grandson, who was the emperor of the middle part of the former Frankish empire. This long strip, cutting through

the whole of continental Europe and including the Netherlands, the North of France, the Rhineland, Alsace,

Lorraine, Switzerland and the North of Italy, accounts for about 2/3 of the European GNP. Of course, the

presence of many navigable rivers and the access to very navigated seas explains a lot of the bananas prosperity.

However, the tradition of decentralized institutions and the characteristic of being at the frontiers of the two

continental empires, accounts for a part of the bananas wealth.

78

W. Blockmans, De Volksvertegenwoordiging in Vlaanderen in de overgang van middeleeuwen naar

nieuwe tijden (1348-1506), Brussel, 1978, 448.

79

On the place of urban self-government in medieval political thought, see Jeannine Quillet,

Community, counsel and representation, in The Cambridge History of Medieval Political Thought, Cambridge

University Press, 1988, 526.


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Further historical research about the origin of towns and the content of charters andprivileges has undeniably confirmed this view80.

According to the nationalist view, very popular in the nineteenth century, the cityconstitutions meant historical progress because their rational and anti-feudal constitutions

later served as models for the larger nation-state.Also in support of this view we are able to find historical examples. The nineteenth centurynation state certainly borrowed institutional elements such as the ban on fiscal privileges anda popular army, based on a general patriotic duty, from the cities81.

According to the Marxist view, still very popular among leftist scholars, city constitutionsmeant a progress because they implied a more modern form of class-domination. Citygovernment means class domination by the patrician merchant capitalist class instead ofdomination by feudal landed aristocracy. It is certainly not difficult to find examples ofoutward class-domination by some wealthy families.In Ghent for instance each year 39 people had to be elected. Thirteen of them were

effectively sitting as "scabini" while the others had other functions or shadow-functions. Forthe period 1228-1275, during which elections had to be held for 1753 mandates, only 33family names appear on all these lists82.

This kind of discussion misses the central point of the debate. The crucial question is notabout the peculiar characteristics of the very various urban governments. It makes muchmore sense to ask whether the broader constitutional context of the civilized middle ages,characterized, as argued before, by polycentrism, was favorable or not to the progressiveevolution to the rule of law, democracy and efficiency .Polycentrism does not discard entirely the risk that some of its centers will evolve towards

class-domination, bureaucracy and inefficiency. By decentralizing society we do not exorciseall evil from it. We can only hope that decentralization gives the better centers the chance todevelop better alternatives, and that the others will follow.As a consequence, the most important comparison should not be between the different urbanconstitutions , but rather between a polycentric system in which they can experiment and amonocentric system, in which a single center controls decision. Viewed from this anglethere is a clear indication that cities learned from each other in order to adopt a more stable, amore democratic and a more diffuse form of government83. A good illustration in this respectis the difference between the Flemish and Brabant towns.

80

Augustin Thierry, ibidem. The existence of many communes has been confirmed by the research of

Charles Petit-Dutaillis, Les Communes Franaises. Caractres et volution des origines au XVIIIe sicle, Paris

1947.

81

On "towns as outposts of modernity", see Fernand Braudel. Civilisation and Capitalism. Vol. I, The

Structures of Everyday Life, Harper & Raw, New York, 1979, 512. See F. Blockmans, ibidem; see also F. Van

Uytven, ibidem, 227.

82

About these class-struggles see F. Blockmans, ibidem, D. Nicholas, Town and Countryside : social

economic and political tensions in fourtheenth century Flanders, University of Ghent, Brugge 1971.

83

On the evolution of political ideology within Italian city republics, see Quentin Skinner, The Italian


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In Flanders, where the commune-movement started very early, power in the towngovernment was almost completely concentrated in the hands of the college of "scabini".They sat as judges, formulated taxes, expenses, acted as privileged witnesses, etc.The wealthy merchant families were therefore anxious to monopolize these extremely

powerful positions. Towards the end of the thirteenth century, coalitions of craft gilds and

the newly rich, broke the power of the patricians, sometimes by very violent and murderousmeans.These new coalitions did not restore stability because a constant struggle for power arose

between the powerful craft-gilds, especially between the mighty weavers gild and the other,smaller gilds.In Brabant and the Northern parts of the Netherlands, such as Zealand and Holland, citiesadopted political constitutions, which were much more "Montesquieuan" in outlook. Besidethe scabini", with a judiciary and executive power, larger legislative bodies of "iurati"(sworn persons) were constituted.The "scabini" and the mayor consulted these bodies in matters of taxation and administration.The system of election and selection for these bodies was very complex and could vary from

city to city. In general however, they reflected a constant effort to give a voice to allimportant groups and classes, in order to avoid constant minorization of some groups and toguarantee a broad consensus about important decisions84.During the fourteenth century the Flemish cities, which had passed through a very turbulentand unstable period, adapted their constitutions in the same way. They also constituted largercontrolling bodies, which represented the several layers of the population. In Ghent forinstance the so-called "Collatie" had representation from the three "Members", i.e. the

patricians, the small craft gilds, the large craft gilds from the textile industry85.Apparently cities "learned" from each others constitutional experiments. However, this

process was to a certain extent corrupted during the fifteenth century by the growingintervention of the Burgundian duke in city affairs, which helped to create a new

"bourgeoisie", dependant on his pleasure

86

.

A similar process of learning seems to have been the case with the urban financialinstitutions.Although the history of the urban financial administration in their very beginning is based onconjecture, the scarce historical sources tell us the following story. The early communes didnot have a simple treasury in which all revenues of the city were deposited. Revenues werelinked to several expenses. The oldest form of revenue was very likely the rents of the

City Republics, in John Dunn(ed.), Democracy. The Unfinished Journey, Oxford University Press, Oxford,

1992

84

About the Brabant city constitutions, see R. Van Uytven, ibid., 231.

85

About the Ghent constitution at the end of the fourteenth and the first half of the fifteenth century, see

Marc Boone, Gent en de Bourgondische hertogen ca. 1384-ca 1453. Een sociaal-politieke studie van een

staatsvormingsproces, AW LSK, Brussel, 1990.

86

About the creeping influence of the duke of Burgundy and the gradual constitution of a "state

bourgeoisie" see W. Blockmans, Corruptie, patronage, makelaardij en venaliteit als symptomen van een

ontluikende staatsvorming in de Bourgondisch-Habsburgse Nederlanden".Tijdschrift voor Sociale Geschiedenis,

11, aug. 1985, 231.


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common fields of the city. They considered themselves partially as landlords, renting land totenants, either to citizens or to farmers "extra muros". Many had important land holdingsoutside the walls from which they derived an important part of their revenue87. During thefifteenth century the city of Zutphen still derived 40% of its revenue from rents of landholdings88.

Beside the revenue from rents, other expenses were probably covered by the merchant gild,which was largely the same body as the early commune itself. Probably the merchant gildalso administered the finances of the early commune89.

With the growth of population and the increase of expenses, the financial administration wascentralized in the hands of the official city magistrate, mostly the council of "scabini". Theyrationalized the financial system by moving towards a simple treasury. They maintained thelink of some revenues with some expenses however, such as fines for breach of the peacewith repairs of the city walls. In another example of this system, the city of Leuven leviedtaxes on eggs and prostitutes to finance the fees for the hangman90.

During the twelfth and thirteenth century the "scabini" introduced additional taxes. The cityaccounts of numerous Flemish cities show that most taxation was indirect. The regressivecharacter of this form of taxation was tempered because mostly luxury products were subjectto the taxation.

Although the councils of "scabini" contributed greatly to the rationalization of the cityfinances, they faced mounting discontent among the non-patrician layers of the city

population by the end of the thirteenth century. As a consequence, consultatory bodies werecreated, which represented the burgesses , and which were entitled to give advice about theintroduction of new taxes91. In Ghent for instance the already mentioned "Collatie" becamemore and more influential about taxation policy92.

A similar movement of popular control was developed about urban expenses . In 1275 theFrench king enacted, on the demand of the Flemish count and popular classes , an"ordonnance" which obliged the "scabini to annually present a report about the way theyhad used the city revenues93.

87

Walter Prevenier, "Quelques aspects des comptes communaux en Flandre au Moyen Age", Finances

et comptabilit urbaines. Colloque International de Blankenberge, 6-9-IX-1962, Crdit communal de Belgique,

Collection Histoire, Bruxelles 1964, 117.

88


89

Walter Prevenier, ibid., 117.

90


91


92

Marc Boone, Geld en Macht. De Gentse Stadsfinancin en de Bourgondische staatsvorming (1384-

1453). Gent, 1990, 34.

93



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Although evolution was rather slow and met some resistance, we may say that the Flemishmedieval cities gradually evolved to fiscal democracies, in which the principle, "no taxwithout consent" prevailed. Apparently the cities were able, after a first phase of primitivecommunalism, and a second phase of patrician oligarchization, to restore an equilibrium

between administrative efficiency and popular control.

Modern categories such as private domain goods and public domain goods, make little sensewhen applied to the medieval cities. They owned and administered goods in both categoriesand did not draw the dividing line between public and private.The cities owned and administered goods which we would label now without any hesitationas "public", such as streets, roads, waterways, squares, market-places, drill-grounds for themilitias, the city-walls, the city-hall, the belfry, the prison, etc.Although these goods fall theoretically within our modern definition of public domain, theywere not always administered in the modern public sense. Because the services of moderngovernments are reputed to be at the service for all, they are paid by everybody throughgeneral taxation. This was not always the case in medieval cities. For example, while taxes

paid for the repairs of the main traffic arteries, the inhabitants themselves financed therepairs of the small streets94. In addition, most cities required the gild, whose members usedthe market-places, to pay for the costs of cleaning95.For fire-fighting, cities made gilds or local committees responsible for organizing rows to

pass the buckets of water96.For other "public" utilities the city as a whole acted as a private corporation. Thus, Ghentmaintained a long road down south to Champagne97 because it derived profits from the tradeexchanges on the famous fairs.

If "public" services were not run genuinely "publicly", the city administered many serviceswhich would now be considered merely private, including use of common fields within the

city walls, domains, manors and farms at the country-side, wind- and watermills, quays,jetties and cranes at the port98. Cities "intervened" in the market, for instance, by the widelyspread "vente aux tapes", i.e. the obligation of each shipper of a vessel of grain to cede a

part of his load (one sixth or one quarter) to be later sold after an interval of some weeks. Inthis way the city disposed of permanent reserves of grain99. Also grain, harvested on thecommon fields was sometimes sold en masse on the market to reduce the price of bread. In

94

Marc Boone, Geld en Macht, 107.

95


96

R. Van Uytven, ibid., 244; Marc Ryckaert, Brandbestrijding en overheidsmaatregelen tegen

brandgevaar tijdens het Ancien Rgime. Linitiative publique des communes, Crdit Communal de Belgique,

1984, 247.

97


98

Cities acting as a real-estate-broker are certainly not a phenomenon, limited to the middle ages. For a

most interesting case in the U.S.A. see Hendrik Hartog, Public Property and Private Power. The Corporation of

the City of New York in American Law, 1730-1870, Cornell University Press, London, 1983.

99

Hans Van Werveke, ibid., 565.


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this way the city governments can be compared with central banks, intervening on moneymarkets in order to secure the rate of currencies.

It is very tempting to regard this urban economic policy as a kind of mixed economy. Forcities not only regulated trade and industry, but also participated actively as providers of all

kinds of services, which could be theoretically privatized.However, such a comparison would constitute a gross misrepresentation of the nature ofmedieval city policy. Within our modern categories, mixed economy refers to a combinationof a planned command-economy, organized by the state, with a market-sector. It was neitherthe intention nor the effect of city governments to plan and to control the economy. Theyacted as corporate bodies within a broad polycentric system in order to perform someeconomic functions such as insurance, economics of scale and minimization of free ridershipin public good-provision. The "vente aux tapes" of grain, for instance, was a kind ofinsurance, organized by the corporate body of the city, to secure the citizens against potential

problems of grain-supply and consequent soaring prices.Also in free capitalist economies, oil companies use to constitute "strategic" reserves to cope

with potential problems of oil supply. Does the economy then change in character and does itbecome a "mixed" economy ? Of course, one could reply that the cities were different in thisrespect because they were able to use their territorial monopoly. Because vessels had to passthrough a city such as Ghent, situated at the confluence of two navigable rivers, the shipperhad little choice.Leaving aside a discussion about the very ambiguous notion of monopoly, it should beemphasized that the several territorial "monopolies, constituted by the different urbancenters, were engaged in a bitter competitive struggle. If one city levied excessive taxes ontrade, it would suffer quite rapidly traffic losses to competitors or retaliation from those,whose traders suffered fiscal extortion100. Even if a city had tried to "plan" its economy, theattempt would have been in vain, due to the immediate reaction of "political" competition.

Section VI. Conclusion

This survey through medieval urban institutions has probably elicited many more newquestions than solved other ones. For example, there is urgent opportunity to study manyaspects of medieval urban constitutions and economic policies more thoroughly by applyingrecent insights from constitutional economics, game theory and sociology. Many voluminousand sometimes very complete city archives in Europe are waiting for zealous scholars tostudy them more in detail101. Because it was our aim to provide a broad panorama, we werenot able to include more detailed analyses. Neither could we do justice to the many verydetailed studies, already made by several generations of skilled medievists. Also many

nuances of these studies had to be neglected in this contribution.100

About retaliation and boycot by the city or by Hanseatic Leagues of cities, see Avner Greif, Paul

Milgrom, Barry Weingast, ibidem.

101

To give an example : the accounts of the finances of the city of Bruges are nearly complete from 1281

to 1789; the only big gap is between 1319 and 1330. From 1331 to 1789, they consist of 402 registers, of which

only 3 are somewhat defective (see Raymond De Roover, ibid., 86). For the whole of the former county of

Flanders 2676 registers of city finances are conserved, numbering 235195 pages (see Walter Prevenier, ibid.,

116). Most of these documents are not even published, not to speak of studied and analyzed systematically.


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Nevertheless, the picture presented here is suggestive for future research opportunities.

First, the study of medieval urban culture invites reflection about the relationship betweenindividual liberty and democracy. Some medieval cities developed during the fourteenth andfifteenth century political institutions, which permitted a level of political control for the

bulk of the population, which would only be equaled with the introduction of the one man,one vote-principle at the end of the nineteenth century. Yet, while the high level ofdemocratic control in medieval cities did not impair the individual freedom of the citizen -rather the contrary was true - modern mass democracy evolved to the unwieldy, super-interventionist and fiscally gluttonous welfare state. This might indicate that a stablecombination of individual liberty and democracy is related, not so much to the quality ofvoting procedures and the functioning of parliaments, but much more to the size of the

political community. Jean-Jacques Rousseau can be blamed for a long list of disastrouspolitical errors, but certainly not for neglecting the problem of the size of democracies. Hismodel of the social contract was not intended for a nation-state such as France or Germany,

but rather for smaller city-states like his austere Geneva. The same might be true for

libertarian democracies. They are probably only stable in small communities, which areobliged to solve their larger-scale problems by forming associations and genuine federations.In short, the history of medieval urban centers is an invitation to reintroduce in liberal

political philosophy the notions of a micro-democracy and Proudhonite federalism102.

Second, the study of the political economy of medieval cities undermines the often purporteddichotomy of state and market. Exponents of this dichotomy regard the state as a set ofinstitutions which are exogenous to the self-regulating mechanisms of social and economicinstitutions.In regard to the civilized middle ages this dichotomy does not hold at all. The authorities,which we would label as the state authorities of these times, such as the emperor, king, duke

or count, were weak and without any organizing influence on markets. The city governmentson the other hand, which were certainly influential on the local level, were rather endogenousto the market process. This was true for two reasons. First, they emerged more or lessvoluntarily like a corporation, second, they provided all kinds of services which we considernow to be market-services, and third, they faced a competition from similar governments,

providing these services.These characteristics of medieval cities illustrate the strong link between political philosophyand economic categories. Once we abandon the idea of a given, territorially established stateand allow it to be replaced by voluntarily constituted political communities, the dividing line

between exogenous and endogenous institutions, between state and markets, betweenpolitics and economics starts shifting. Institutions we think of as created for the market,such

as law and order, or created instead of the market, for example public good provision,become a part of a wider competitive process. Institutions, regarded as within the market,and therefore nonpolitical, such as insurance, become political because they are organized byself-governing bodies, which constitute a common policy.

This amalgamation of politics and economics, of public and private institutions, of policyand market inevitably raises the question what should be considered exogenous to thisamalgamation. It is, as indicated by the experience of the middle ages, probably no morethan the sharing of some basic moral values such as respect for human dignity, liberty,

102

Although utterly wrong in his views on individual property, capitalism and the market economy, the French

anarchist Pierre-Joseph Proudhon wrote very interesting pages on libertarian political communities, based a contractualrelationships between individuals and genuine federation between communities (Pierre-Joseph Proudhon, The Principle of

Federation, University of Toronto Press, Toronto, 1979).


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respect for the fruits of labor and for peaceful cooperation.

between market state

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