1. Introduction
One of the reasons why the Germanic Kings wielded less power than the Roman emperors was because the old hierarchical relationship which singled out the emperor as the representative of public authority was replaced, in the case of the Germanic kingdoms, by a series of interpersonal, private accords between the king and his most important subjects: the heads of clans or lineages (sippe), which could challenge the crown, as royal succession was based on election rather than on hereditary principle. The Germanic kings, thus, struggled to be considered superiors in the way the Roman emperor had been because they had to grapple with the nobles of their kingdoms, to whom they often entrusted territorial government. This important transformation led to a specific form of social organization that historians have called feudalism, which from the perspective of European-Western constitutional history has been described as a type of government in which political power was a private prerogative and asset wielded by a whole series of local lords.
1. The Early Middle Ages and the curious consequences of Feudalism in Western Constitutional History
2. Late medieval monarchy and the origin of the Western state
The considerable surge in
economic activity due to the multiplication of trade links (Commercial Revolution), and the rising
cultural level coinciding with the emergence of the first European universities (Bologna,
In the final medieval centuries, the confrontation between popes and emperors would enable a set of strong monarchs to assert the independence of their kingdoms from the papacy and the Holy German Roman Empire, above all, in chronological order, in the kingdoms of Castile, France and England. Actual European states as Italy or Germany would not become independent until the 19th century because they were integrated in the Holy Roman Empire.
The
Castilian, French and English kings of the Late Middle Ages, had little in
common with the German “royalty” which arose after the fall of the Western
Roman Empire, because the very nature of the
royal institution underwent three major transformations: the “kings” had become “monarchs;”
their crowns came to be inherited (hereditary
principle); and kings no longer
ruled over a certain “nation” or “people,” but rather over entire
territories.
3. From kings to monarchs
3.
A territorial monarchy.
And this was possible because from the European universities, since the end of the 12th century graduated a whole bunch of Lawyers that initially became the “Officials” of the kings and ended up becoming a new ruling class as a New European legal aristocracy: the Nobles of the Robe. Kings called on jurists to place them in key positions in their kingdoms because they considered them powerful instruments for the reinforcement of their power, as the Law that these jurists had studied in universities across Europe convinced the authorities for whom they worked ―emperors, popes or kings― that they were heirs to the legendary Roman emperor; and not just any emperor, but the great Justinian, who had deemed himself the master and lord of everything, including, of course, the legal realm.
5. The triumph of Late Medieval Monarchies over
Christian universalism
The last consequence of the rising of these strong monarchies was that their kings, if initially generally endorsed the ideal of political universalism and, as such, were at least theoretically beholden to the pope and the emperor, when they became powerful enough they reacted against the idea that they were under the authority of emperors and popes and defended their absolute independence within their respective realms.
First because the royal legists, the king’s
officials, convinced the kings that they were emperors on their realms. And
second because the popes lost prestige and power and by the end of the 15th
century, they were powerless against kings. After the Sack of Rome by the
Imperial troops of Charles the Vth in 1527, popes would never get involved
again in European politics.
6. Kingship in the Era of
Absolutism
The fact that kings reacted against the idea that they were under the authority of emperors and popes and defended their absolute independence within their respective realms, explain why these great Late Medieval European Monarchies ended up being the base of the state model of organization that would appear in the beginning of the 16th century with thinkers like Machiavelli, Bodin or Hobbes.
In fact, “Modern” Kings became much more powerful than their late medieval predecessors in the course of the 16th and 17th centuries as they would be considered “Absolute” Monarchs, with almost all power of the land and the people of the realm. A strong power that was pretty useful in the 18th century, when as “Enlightened” kings tha remained absolute monarchs tried to reform their realms adapting to the new ideas of the “Philosophes”, in an Era with brilliant monarchs like Catherine the Great of Russia (1762-1796), Joseph II of Austria (1765-1790), Charles III of Spain (1759-1788), Frederick II The Great of Prussia (1740-1786) or Joseph I of Portugal (1750-1777), with his prime minister the Marquis of Pombal. We will see all that in Teaching Guide number 6.
7. The survival of monarchies in the XXIst century
After the Enlightened revolutions of the 18th century things changed and the kings progressively saw their power limited. Like happened for instance in the United Kingdom because Parliament became the great protagonist of political end legal history, leading to a parliamentary regime in which government depended not on the free will of a monarch but on which party won the legislative elections. This is why under Queen Victoria (1837-1901), whose reign represents the height of the British Empire, the motto of the monarchy was: the king reigns but does not rule. Government was in the hands of the Prime minister elected by the majority of the parliament.
Some monarchies ended up disappearing. Like happened for instance in France, one of the most solid ones, that disappeared first with the beheading of Louis XVI (21 January 1793) and Marie Antoinette (16 October 1793). The monarchy was reinstalled after Napoleon’s fall by Louis XVIII and Charles X, both brothers of Louis XVI. Monarchy was adapted to the Parliamentary regime under the reign of Louis Philippe of Orleans (1830-1848), and disappeared completely with the Wallon’s amendment the 30 January 1875, by one single vote, on the issue of the national flag. Since that date France is a Republic? Or is it a Republican Monarchy, in the line of Napoleon I and Napoleon III after the De Gaulle’s reform of 1962 enabling the direct election of the President of the Republic by universal suffrage that, in my opinion, has transformed the French 5th Republic in a sort of a Republican Monarchy; following, in a way, the example of the US Presidential Regime. The Presidents of the French and US Republics have far more power than European kings and queens. Though elected they are real monarchs.
The interesting point is that in Europe we still have several monarchies. The oldest European king is the British monarch who is not only the king of the UK, but also the head of state in most of the Commonwealth countries, like Canada or Australia, for instance. England in its history has only been a Republic under the Cromwell dictatorship established by the Lord Protector (1653-1658).
Spain is also a very old monarchy, but its rule was interrupted several times. This is why, for instance, Spanish monarchy had to be reinstituted after the Spanish War of Independence against Napoleon (1808-1814), the 1868 Revolution against Elisabeth II (1868-1874), and finally the II Spanish Republic (1931-1936), the Civil War (1936-1939), Franco’s Dictatorship (1939-1975) and the Transition to Democracy (1975-1978). An extremely interesting process from the legal perspective that I will be willing to explain in class.
Besides these two mentioned countries other European states have kings and queens as head of states like: Belgium, the Netherlands, Norway, Sweden, Denmark or Luxembourg.
The question then is why monarchies survived in these highly developed European countries. Isn’t monarchy an anachronism?
In my opinion it is not, and the first reason for that is that European monarchies get on well with democratic regimes, which is absolutely not the case of weird “Hereditary Republics” like North Korea. Let’s discuss in class why monarchy is still a useful institution. Starting first with the precision that 21st century European kings are not monarchs but kings, with not real political power. Let’s find out why those powerless queens and kings are still today heads of their respective states.
Of course, Royals must observe good conduct. Otherwise, they should disappear. We will also
see in class how some scandals have
affected the stability of European monarchies and have threatened their
survival as an institution. Like Lady Di’s case in England, Sarah Ferguson,
Meghan Markle, Prince Andrew and its relationship with Epstein, the Emerit king
of Spain Juan Carlos, or the Norwegian princess Mette Marit.....
2. How to study Teaching Guide 5:
a) Read the corresponding text in the “Aula Virtual”.
b) Familiarize yourself with the basic Chronology of the period:
CHRONOLOGY
XI Century
1066 Battle of Hastings. William the Conqueror defeats and kills Harold
the last Anglo-Saxon king.
1085 Conquest of Toledo –the old capital of the Visigothic Kingdom- from the Muslims by Alphonse VI of Castile and Leon.
1088 Foundation of Bolonia University, the oldest in Europe.
1099 Death of Rodrigo Diaz de Bivar “The Cid” in Valencia.
XII Century
1137 Union of Aragon and Catalonia (Barbastro Capitulations) as a result of the marriage between Ramon Berenguer IV count of Barcelona and Petronila, queen of Aragon.
1154-1189 Reign of Henry II of England. Creator of the legal system of “Common Law” through the creation of royal courts and important legislative reforms. (Constitutions of Clarendon, 1164).
1170 Henry II of England orders the assassination of Thomas Beckett, Archbishop of Canterbury, for opposing royal power.
1180-1223 Philip II Auguste of
France. The first “King of France”
XIIIth Century
1212 Battle of Las Navas de Tolosa. Consolidation of Christian Supremacy in Medieval Spain.
1215 Nobles impose on John Lackland Magna Charta.
1230 Fernando III definitively unites the kingdoms of Castile and Leon, and creates the most powerful realm in the Spain of the Reconquest.
1252-1284 Reign of Alfonso X, the Wise, of Castile.
1272-1307 Reign of Edward I of England, who strengthens royal power by relying on the cities as allies against the great nobility.
1276 James I of Aragon dies and integrates the kingdom of Valencia in the Union of Aragon and Catalonia. Appears the Crown of Aragon (Aragon, Catalonia and Valencia).
XIVth century
1302 First meeting of the French Estates General (États Généraux), convened by Philip IV, who asks for aid from nobles, bishops and cities representatives to fight against the pope Boniface VIII.
1314 18 March Jacques de Mollay the last Grand Master of the Knights Templar, extremely wealthy religious order dissolved by the king Philip the IV, who will die 9 months later. His three male sons will die without descendance: Louis X in 1316, Philip V in 1322 and Charles IV in 1328 (Accursed kings). End of the Capetian dinasty and beginning of the Valois. Dynastic cause of the beginning of the Hundred Year’s War as the king of England was a direct descendant of the Capetians through his mother, but in France women could not transmit rights to the Crown (Salic Law).
1337 Beginning of the Hundred Year’s War (Until 1453) between the kings of England and the Kings of France.
1348 Adoption of the Ordinance of Alcalá in Castile (Ordenamiento de Alcalá), Alphonse XI consolidates Kings authority in Castile. Royal Law prevails over local traditional customs.
XVth century
1415 Azincourt Battle. Decesive victory of the English against the French.
1431 30 May 19-year-old Joan of Arc I is burned at the stake by the English. In 1428 she had conquered Orleans from the English Army, and she enabled the crowning of Charles VII in Reims despite English occupation on 17 July 1429.
1453 End of the Hundred Year’s War (beginning in 1337). French victory consolidates the position of French Kings. And English defeat consolidates preeminence of the English Parliament (House of Commons and House of Lords) over the English Kings.
1461 Death of Charles VII of France (king since 1422) who won the Hundred Year’s War and consolidated the strength of the French Monarchy.
1479 Union of Castile and Aragon under the Catholic Kings. Spain’s birth certificate. They laid the foundations of the Spanish State.
1485 End of the War of the Roses (since 1455). The conflict was fought between the supporters of the House of Lancaster (emblem a red rose) and those of the House of York (emblem a white rose), rival cadet branches of the royal House of Plantagenet. Henry VII, who descended from the Lancaster, rises to the English throne, the first monarch of the Tudor Dynasty. English nobility was so weakened as a result of the War that the Tudors could impose a century of royal absolutism in England with strong monarchs as Henry VIII and his daughter Elisabeth I.
1492 1st January Conquest of the city of Granada by the Catholic Kings. End of the Spanish Reconquest, after almost 800 years (Since 711).
12 October: Christopher Columbus discovers America.
1494 Treaty of Tordesillas (1494), the kings of Castile and Portugal agree on the limits of their conquests Worldwide, independently of the Pope. They divide the world in two parts (Line of Tordesillas).
c) Complete in your Class notebook the following exercises:
CONCEPTS:
Feudalism. Fief. Feudal pact. Vassal. Ancien Régime. Pactism. Social pact. Constitution.
Rule of Law. Kings vs monarchs. Suzerainty vs sovereignty. Coronation.
Anointing. Royal Touch. Thaumaturgic Kings. Fundamental Laws. Order of
succession. Hereditary principle. Regency. Prince. Curia regis (court). Exchequer. Officials. Royal Courts of Justice.
Common Law (England) vs Ius Commune
(Continental Europe). Legists. Nobles of the robe. Assembly of States. Anagni
Slap. Alexandrine bulls. Treaty of Tordesillas. Parliamentary
regime. Wallon’s Amendment (1875). Hereditary Republic.
QUESTIONS:
Concrete questions
1. Why did Italy and Germany not become
strong kingdoms in the Middle Ages? Compare the situation of both territories
with what happened with kingdoms like Castile, France or England.
2. Explain the sense of the sentence “Rex est imperator in regno suo”. Who
invented it?
3. Why the ceremony of royal coronation
began and why it became crucial for stability of monarchies?
4. How did initially the kings of the
Capetian dynasty in France ensure the instantaneous succession in the throne
after the king’s death, prior to the consolidation of the hereditary principle?
5. Why were important in every kingdom the
fundamental laws that organised royal succession? Think of the advantages of
the principle of hereditary succession of the crown and why it was important to
ensure the legality of royal succession.
6. Why there are monarchies still in
Europe? Think of what the advantages are of having a king instead of a
president of a republic.
7. What is the etymological sense of the
word “prince”?
8. Who was the first French king that was
referred to as “King of France? What is the sense of this terminology?
9. What were the consequences of the fact
that late medieval kings could collect taxes from their subjects? In which way
it consolidated the power of the kings? Think of why it helped the French
monarchy to win the Hundred Year’s war against the English?
10. Why universities, and more concretely
the Faculties of Law, were so important for changing not only the European
Legal systems but the political organization of the late medieval kingdoms?
11. Why the study of Roman Law helped
consolidating the power of late medieval kings? Think of what the political
background in the time that was formed the Compilation of Justinian.
12. Why Philip IV the Fair of France
convened for the first time in 1302 the French General Estates (États
Généraux)? What was his political purpose?
13. With which legal argument extracted
from the Corpus Iuris Civilis of
Justinian did the Legists of the late medieval kings justify that the kings
were not submitted to the Emperor?
14. With which legal argument did the
Legists of the late medieval kings justify that the kings were not submitted to
the Pope?
15. How did the kings of Portugal get rid
of the submission to the pope? Remember that Philip IV of France would do the
same later.
16. Why did the Treaty of Tordesillas
(1494) prove that Castilian and Portuguese kings had become independent from
the popes?
17. Why the absolutism of 18th
century enlightened European monarchs was beneficial for their kingdoms?
18. Why 21st century monarchs
have in reality become kings again?
General questions
1. Which are the two meanings of the word “feudalism”:
from the social-political perspective and from the legal perspective.
2. Why today “feudalism” has not the entirely
pejorative connotation it used to have, from the perspective of Western
constitutional history.
3. What are the more important changes that the
Commercial Revolution brings to late medieval European societies? Compare it
with the old social structure from the Feudal era.
4. Which are the specific titles granted to crown princes in England,
France, Crown of Aragon, Castile and Leon and Navarre?
5. Why did the
late medieval kings used initially the Administration of Justice to consolidate
their power? How did they do that?
6. Explain the
essential difference between the English Common Law and the Continental “Ius
Commune”? Think of how both legal systems appear.
7. Mention the
reasons that explain that an anachronic institution like monarchy is still in
use in some European nation-states in the 21st century?






















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