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 person exists for his own sake; but the slave is one whose being belongs to another. If therefore a community of free persons is directed by its ruler to the common good, that will be a right and just government, suitable for free persons". St. Thomas Aquinas, De Regimine Principum (On Princely Government) in A.P. d'Entrves (ed.). Aquinas, Selected Political 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 for prosperity. As the famous French liberal historian Augustin Thierry puts it not without passion : "The bourgeoisie, this new nation whose morality consists of civil equality and economic independence, emerges between aristocracy and serfdom. It destroys forever the social duality of the first feudal era. Its innovating instincts, its activity, its accumulated capital, are forces acting in a thousand ways against the power of land owners. As the case with 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 ever centralizing nation-states. An article in The Economist3, Government by the nice for the nice points out that about thirty million Americans live in privately administered community 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 the end of their article however, the authors cannot refrain from mentioning that the walled cities of medieval Italy were both a symptom and cause of a society plagued by war. By this they suggest that the dispersion of political and military power among the medieval cities was the cause of steady warfare and that a proliferation of the condominium-revolution might turn the U.S. into another Bosnia. This raises a question. How should we appraise the medieval political-urban revolution? Was it a process of order or of disorder, a tendency towards peace or to war, a movement to a higher level of civilization or brutality ? To answer this, is the main aim of this chapter. I also 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 regionalist movement 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.

Western civilization, but also to the better understanding of the moral and institutional requirements of a free society . Before dealing with the origins of the medieval urban revolution, I want to make some theoretical remarks about the broader institutional background, in which this revolution took place. Such remarks are necessary to understand the meaning of the medieval urban revolution for the present debate on the institutions of a free society. The urban revolution which began in the eleventh century and raged throughout Europe during another two centuries, was one of the most dynamic elements of the polycentric extended order of the medieval Pax Christiana. In this respect one can compare the second middle ages (1100-1500 AD) with other historic and present orders such as the Pax Romana in 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 knowledge and 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 markettheory. As the medieval example shows, polycentrism can apply also to legal and political matters. 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 as defense, urban infra-structure and urban planning, enjoyed local autonomy. This allowed competition by a process of voting with the feet5. By extended I understand that a variety of independent actors, who may live eventually far from each other, who may differ in regard to their language, culture and religion, are involved in a vast and complex network of interaction. This network allows for wealth creation through labor division, trade, innovation and imitation. Again, one can imagine quite well what an extended order means in regard to economic activities. In this respect one can 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 a tremendous 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 process of instances, aiming to exert an encompassing control on social evolution. Though the extent of social control can vary according to technical and ideological differences, many, even extended, orders in history can be classified beyond any doubt as monocentric : the late Roman Empire (250-400 AD), the Byzantine Empire, the Chinese Empire, the Soviet Union. Restraint orders involve only a limited number of people, mostly geographically concentrated and culturally homogeneous. Though the interaction within the group may be very 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.

poor due to the low level of labor division and innovation. Historically seen, most tribal societies should be classified in this category. Such a tribal society can have a more polycentric character, such as the Germanic tribes, or a more monocentric 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 evolve to a monocentric order, as for instance often the case in China, where periods of chaos were followed 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 remarks should be made about the emergence of the medieval pax Christiana. First, polycentrism was certainly not the model, authorities had in mind when ruling their society. 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 to build up their administrative structures, to curb down the privileges of the barons, the monasteries, 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 a totalitarian rule, which was later on considered by the SS as a praiseworthy model6.But also more moderate rulers such as the Normandic dukes, the Flemish counts, the kings of England and France attempted steadily to extend their power. Also the popes, whose action contributed a lot to the limitation of secular power, were not free from the quest for a full theocratic rule. So, we should not look for the origins of medieval polycentrism in the intentions 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-called papal revolution. This revolution started in the late eleventh century and was inspired by the Cluniac monk Hildebrand, the later pope Gregory III (1073-1085 AD). According to this new 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 and interpreted by the church. As Harold Berman points out in his impressive book Law and Revolution, the papal revolution constituted the religious and intellectual legitimacy for the autonomy 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 rulers8. 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

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 the papal 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 and legal principles. This common belief facilitated the development of the vivid interaction within the communitas Christi of medieval man. The urban revolutions of the eleventh and twelfth centuries, certainly one of the most remarkable explosions of economic and social energy, took place within this background of a 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 the fourteenth century. Harold Berman estimates that urban population rose from about 1 % in 1050 to 10 % in 12009. Paris for example expanded from 20.000 in 1050, to 110.000 in 1200, to 150.000 in 1330; Cologne from 21.000 in 1050 to 50.000 in 1200, to 54.000 in 133010. In fourteenth century Flanders about a third of the population lived in large cities such as Ghent ( 50.000), Bruges ( 40.000), Ypres ( 30.000) which are located within an area of no more than 800 square miles11. Several sources of this rapid urbanization can be identified. These include 1) the revival of international 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 connected12; 2) the agricultural productivity increases of the end of the tenth and the beginning of the eleventh century, by which a larger nonfarming 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 supply of 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.

to urban centers 14. Although such factors undeniably contributed to urban growth in medieval Europe, they do not tell the whole story. The take-off of city life was contemporaneous with and probably encouraged by important constitutional changes. When taking into account the full economic, technological, religious, moral and legal background against which the urban revolution occurred, 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 of God15. The Peace of God, originally called the pax Ecclesiae, forbade warfare or violence against 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 warfare during 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 labor and trade, and not on pillage and warfare. They expressed also a changed view of classrelationships, in which the so called third estate was no longer regarded as the inbelle vulgus (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 clarify this historical movement we should mention the distinction between a natural, imposed and voluntary association16. The natural associations par excellence are families and kinshipgroups. 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 them because of threat of violence. Examples are tantamount: the state, the army, monopolistic public schools, state-churches, communist and national-socialist youth-leagues, etc. Voluntary associations are based on the deliberate choice of the members, who have the freedom to join or not to join, to stay or to leave. The level of occurrence of such associations in society are an indication of civilization: they express the ability to cooperate voluntarily with strangers, i.e. people outside the close family-circle. The more voluntary associative life is rooted in social mores, the more a society will be able to solve all kind of social problems, without relying on coercion. Voluntary associations are the life-blood of what Albert Jay Nock once called social power, the real antagonist (not the isolated individual) 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.

The origin of voluntary associations can be traced back prior to the middle ages. Among Germanic peoples it was common to form gilds, i.e. groups of men, forming an artificial family, bound together by ties of rite and friendship, offering mutual support to its members upon payment of their entree fees. These mutual support groups remained important during Merovingian and Carolingian times under names such as gildonia, confratriae or convivia, 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 late Roman Empire, persisted among the ruling elites, although most of Germanic associative life adapted fully to Christianity19. Several factors encouraged a change in this attitude after the eleventh century. First, the internal church structure evolved more towards free associations as the cathedral chapters obtained 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 of communities (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 more liberal views on association. In general, jurists adopted the principle that all freely constituted associations were permitted, provided their goals were just and laudable. The restrictions of the 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 a real explosion of associative energy on all levels of medieval society. On the more religious side we should mention the urban revival of monastic life and the birth of regular clergy such as the Dominicans or the Franciscans. It was also reflected in the increased activity of chapters 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 be easily drawn, should be especially mentioned the merchant gilds and craft gilds or corporations, the hansas, and, last but not least, the famous communes. From the eleventh century, the previous constitutional pattern of the city underwent a revolution , due to that remarkable social phenomenon of the commune, which was at its turn 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: to liberate the community from feudal lordship, to provide material aid, collective goods, and regulate 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
Antony Black, ibid., 19.

21
Antony Black, ibid., 19.

22
see J. Le Goff, ibidem.

23

The commune was more or less a territorial phenomenon. Nevertheless, some citydwellers, such as foreigners, Jews, clerics or knights were excluded from membership24. The commune differed in this respect from the merchant gild, which grouped only the mercantile elite of the town. Merchant gilds were the direct continuation of the older Germanic 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 of merchants travelling long distances and providing mutual protection by pooling defense and other risks26. There could be more than one hansa in a town, and merchants of several towns could be member of the same hansa. Over time, hansas of several cities merged, such as for instance 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, the association of all city-dwellers. Like all older associations they were sworn communities, as reflected sometimes by the name coniuratio. Other names were amicitia, or pax28. The sworn 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 had to swear to safeguard the borough and its character29. Also in the early Italian cities it was the custom 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, taxation and the admission of new citizens. All adult male urban citizens were expected to swear obedience to the laws, allegiance to the rulers and fidelity to treaties and alliances contracted with other rulers or cities. In many towns the communal oath was renewed annually or at regular 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
Antony Black, ibid., 57.

From the eleventh century on a series of bitter struggles broke out in the many cities of western 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 to England, 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 Cambrai revolts by the commune occurred in 958, 1077, 1138, 1180 33. With some desperation the author of the Gesta Pontificium Cameracensium reported in 1138 about the city: And finally, what should I report about the liberty of this city ? Neither the bishop, nor the Emperor 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 even more 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 peak in the 1080s. By the 1120s the Flemish cities had rebelled and received in 1127 charters from count Dirk of Alsace35. By the end of the twelfth century the urban revolt had achieved its 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 or less satisfied. Before analyzing the major tenets of these new constitutions, the links between the urban revolt and the Peace of God movement should be emphasized. First, the communal movement was particularly strong and arose earliest in religious centers from which the Peace of God and Truce of God movement were started. A major example 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 place in the city where goods were exchanged and protected by the Holy Cross of the Peace of the market36. Section II : Medieval cities as centers of polycentric law Much like monetary matters, law is a field in which polycentrism has gained little credibility among intellectuals. Even among most liberal scholars the creed one state, one currency and one 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, 634688.

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.

Kelsen 38, continues to prevail. The civilized middle ages however, lacked a monopoly on law-making while polycentric law-making systems continued to function up till the French revolution. To avoid misunderstanding it should be stressed that polycentric law-making entails more than 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 free mobility of citizens. Could this be called a polycentric law-making system ? Of course not. It would 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 one and the same extended order of patterns of human actions. These different centers serve the long-term-stability of this order by applying rules of conduct which may originate from certain parts of this order, but spread because their application yields satisfactory results elsewhere. They succeed not only by solving conflicts at a primary level, i.e. between citizens, but also on a secondary level, i.e. between competing jurisdictions, applying different standards of judgments and by conflict resolution when different jurisdictions collide 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 system requires territorial monopolies in rule-making and/or adjudications. This falls beyond the scope of this article39. For now, it is sufficient to note that the notion of polycentric lawmaking 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 the proper methods of enforcement and punishment . It implies that polycentrism is an imperfect, chaotic and uncivilized situation and must necessarily lead to the higher phase of monocentric state made law. Indeed, there are several historical examples, which illustrate such 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 the medieval cities as autonomous law-making centers. The political autonomy of a city and the freedom of its citizens was usually solemnly recognized in a charter or privilege, granted by the secular or ecclesiastical lord. The charter often recognized the legislative power of the city magistrate while at the same time also stating the most important legal rules for the burgesses. In many charters, such rules are mentioned as "consuetudines", i.e. customs of the realm40. So, we may suppose that many of these rules were already established in practice before the charter. In most cases, cities acquired 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 prodigious proliferation of chartered cities. Yet this did not lead to a mosaic of urban legal systems. In fact, newly chartered towns often took over the rules and institutions of older cities, or in many 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

Polycentrism is not the opposite of uniformity. It only guarantees that it should be the outcome of a mutual and voluntary adaptation by different authorities, who experienced the rules 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 free status. 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 to cities. It spread also to numerous village communities43. In coastal Flanders, called Franc de Bruges, feudal status was rather the exception than the rule among the peasantry44. The liberalization of personal status should be seen rather as part of a broader emancipation movement,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, the excercition drill-grounds, the mills, the common fields, etc., were considered common property, belonging to all citizens. The liberation of the land within the cities occurred in a variety of ways. In Ghent for instance, where the city land belonged to the St. Peters- and St. Baafs-abbeys, and where citizens had to pay a tribute to them, the local merchant gild of the city collected enough money to redeem the tribute in 1050 47. The real estate of the allodial owners was sometimes extremely large due to the fact that the original owners still exploited a farm there. Later, they could earn enormous sums by renting small lots to numerous tenants. In regard to contract law, the provisions of the cities and the decision of the magistrates reflect a gradual infiltration of Roman and common law. The principle "ex nudo pacto actio nascitur", which liberated the formation of a contract from formalities, for example, appeared frequently 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
John Gilissen and Ivan Roggen, ibid., 258.

47
Frans Blockmans, Het Gentsche Stadspatriciaat tot omstreeks 1302, Anvers-La Haye, 1938, 130-136.

48

execution of a contract. While in older customary law an execution on the person of the promisor was the standard, urban law tended to replace this by an execution on the patrimony of 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 the ordeal, 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 excluded and forbidden as a means of evidence50. Did the hostility of the burgesses to trial by combat result from utilitarian concerns? The urban population was less trained in fighting, so they would be on average inferior in such trials. This explanation suffers, however, from some major weaknesses. First, although less imbued with a culture of violence than the chivalry, the burgesses remained familiar with the handling of arms through the militias and the practice of the feud. Second, the law allowed 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 was also reflected in the decrees of the Peace of God and the policy of city authorities towards the blood feud. The ordeals were in general replaced as means of evidence by written documents and by witnesses51. 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 call civil or common law matters such as real property, contract, inheritance law, matrimonial contract, but also in matters of the criminal law52. This latter power was however limited by the 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 of separation 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 derived from theirs. It could also act as a court of appeal for lower courts such as those of the gilds55.
John Gilissen and Ivan Roggen, ibid., 275.

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.

Although the competence "ratione materiae" of urban courts was very wide, in most cases they did not have a territorial monopoly within the city . Especially the ecclesiastical enclaves 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 also claimed 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 all parties in dispute, who wished to choose them, by prorogation. There is no need to add that this extensive interpretation of ecclesiastical competence often led to conflicts with the secular urban courts56. To summarize, the polycentric evolution in law-making by many urban authorities, illustrates that an overall order of action does not require a centralized legal system, operated by a nation-state. This runs contrary to the 19th century view of continental liberalism which held that the nation-state was the sole vehicle for the preservation of the legal order, subservient to the 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 of legal institutions, but on a common set of values, i.e. the values of western Christendom as enriched 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 arms and to the freedom to decide about their use . This situation of decentralized armament existed 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 most charters 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 the right to bear swords but not knives, because they could be hidden58. This quite radical dispersion of arms provokes among modern mainstream intellectuals two fundamental questions. The first is classically Hobbesian : does the proliferation of arms inevitably lead to the war of all against all? Such a situation evokes terrible pictures of long lasting and murderous civil, tribal and factional wars, such as during the already mentioned Merovingian times, the warlord-periods in 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, be produced at a suboptimal level. Everybody will try to take a free ride on the joint defense efforts of the others, so nobody will be ready to voluntarily join a militia, while such joint efforts 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

Members of all societies face the risk of being injured, wounded, robbed, raped or killed by other members. In historical and sociological literature basically two methods are described to 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 of the state, namely the machinery of criminal law. The first is considered primitive, barbarian and uncontrolled , the second rational, civilized and orderly . Reliance on the third form of association, the voluntary, is mostly overlooked here. Nevertheless the evolution of criminal law in Flemish cities provides us with an impressive historical example of maintaining law and order through the discipline of the voluntary group. To put this evolution in its proper historical perspective, something should be first said about the 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 party could always offer to buy off the right of retaliation and pay damages, the so called composition. "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 in retaliatory raids and were held jointly liable for the payment of the damages, agreed in the composition62. 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 fighters was for a time drastically restricted . As well as quarantine, parties could always voluntarily conclude a truce ("treuga") to provide for a cooling off period63. 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 not respected 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
Raoul C. Van Caenegem, ibid., 234.

63
Raoul C. Van Caenegem, ibid., 250, 253.

64

Finally, when a composition was reached hatred and violence gave way to a positive relationship 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 of western Europe, until the end of the eleventh century. After that, the situation changed in two major respects. First, the Flemish counts, who could be compared with the kings of England as 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, the right 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 generally required that citizens assist each other to defend their fellows when attacked, or to organize retaliatory actions. Each citizen had the right to call for help from other citizens ("faire le cri") by shouting words like "commune", "bourgeoisie" or "ville", or by ringing the alarmbell. In the event that one of the burgesses was kept in prison outside the city or if the property of one of them was robbed or seized against the charter or any agreement of the commune, then the citizens had the obligation to act "extra muros" in order to rescue or to avenge their fellow66. In regard to injuries, inflicted by burgesses on other burgesses, the communes continued to consider 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 difference with the criminal policy as developed by the counts. This latter policy considered crime as a public affair and the legal conflict, arising from the crime, as a conflict between the public authority and the criminal. The cities respected the inter-individual or inter-family character of the conflict, but, consistent with their peace-philosophy, made major efforts to control retaliation 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 truce had in principle a temporary character. It could be made permanent in fact until composition had 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, long banishment, burning of houses, or even capital punishment67.
Raoul C. Van Caenegem, ibid., 265.

65
Raoul C. Van Caenegem, ibid., 280.

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

Second, the cities maintained the institution of hostage taking but they civilized it gradually by reorganizing it. To protect helpless hostages from uncontrolled acts from the hostagetaking party, they had to stay in a city-prison or hostage-house, where they were often allowed 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 conflict and 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. They often included priests or monks, retired judges, deans of a gild, etc. The payment of compensation was the basic sanction for the committed crime69. Often an additional amount had to be paid to the mediating officer, but this was essentially for the costs of mediation and not 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 to abjure responsibility for criminal members of their kinship-group. It is clear that the decision to abjure was the outcome of a trade-off : face the risk of retaliation from the kinship-group of the victim or lose the protection of your own kinship-group70. The more peaceful social life is in general, the more likely it is that people will abjure responsibility from the crimes of their family members. Abjuration probably increased substantially within the cities, due to the more peaceful atmosphere from the twelfth century on71. Moreover, cities kept registers of abjurations, which must have permitted them to keep tabs on 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, assisting its own members and endeavouring for peace among its own members. Unless they had an agreement 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 social functions 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 for existence. Finally the state had succeeded in its aim to expropriate the conflicts between its citizens.
Raoul C. Van Caenegem, ibid., 254.

68
Raoul C. Van Caenegem, ibid., 277.

69
Raoul C. Van Caenegem, ibid., 301.

70
Raoul C. Van Caenegem, ibid., 298.

71
Raoul C. Van Caenegem, ibid., 247.

72
Raoul C. Van Caenegem, ibid., 297.

Section IV . Defense of the city against military agression. Cities managed to provide a well-organized defense. At times, they even became dominant military 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 leaving their assets behind, the charters of the new autonomous towns provided the right to erect walls around the territory inhabited by the members of the commune. In case of population growth, 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 the nineteenth 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 for maintaining city walls was to facilitate the raising of local taxes. The building and repairs of the walls were financed by communal taxation. In many Flemish cities the fines, imposed for breach of the different peaces, paid for the repair of the walls.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 when necessary for the defense of the town. In many cases, intermediary organizations, especially the craft gilds or the quarter-committees were used to organize the militias75. By this they effectively used the organizational structure and mechanisms of social control to prevent free ridership. The disadvantage however, was that the separate gild militias sometimes became engaged 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 other feudal lords. Sometimes they gained spectacular victories over monarchs with absolutist Byzantine dreams, thus hindering the development towards monocentrism. Examples, which deserve to be mentioned are : the battle of Legnano in 1176, where the Lombard league, an alliance of Guelph and pro-papal cities, defeated Emperor Frederick Barbarossa; the battle of Kortrijk in 1302, where the Flemish army, consisting chiefly of city-militias of Bruges, Ypres and Ghent, defeated the French army of Philip the Fair, an army 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 of the 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

battles show that the cities and their militias were not a fringe phenomenon in medieval society. They also constituted a military power, which was able to tilt the political powerbalance 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. These regions 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, but also form effective alliances in order to ward off military threats. Beside the Italian and Swiss 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. It is true that sometimes wars broke out between the cities themselves as for instance between Bruges and Ghent. However, it is still true with the growing threat of the central power of the Burgundian duke, they were able to form stable alliances and to offset the danger of centralization. Notable cases of military cooperation between cities in the Netherlands involved the common organization of convoys, protecting Netherlands merchant vessels against French or English acts of piracy in 1437-1454; the raising of an army in 1491 in order to clear the country 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 broader history ? The different historical schools in general agree that these constitutions were an element in historical progress, but differ widely about the nature of that progress79. According to the classical liberal view, as brilliantly developed by Augustin Thierry, city constitutions 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.

Further historical research about the origin of towns and the content of charters and privileges has undeniably confirmed this view80. According to the nationalist view, very popular in the nineteenth century, the city constitutions 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 century nation state certainly borrowed institutional elements such as the ban on fiscal privileges and a popular army, based on a general patriotic duty, from the cities81. According to the Marxist view, still very popular among leftist scholars, city constitutions meant a progress because they implied a more modern form of class-domination. City government means class domination by the patrician merchant capitalist class instead of domination by feudal landed aristocracy. It is certainly not difficult to find examples of outward 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. For the period 1228-1275, during which elections had to be held for 1753 mandates, only 33 family names appear on all these lists82. This kind of discussion misses the central point of the debate. The crucial question is not about the peculiar characteristics of the very various urban governments. It makes much more 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 progressive evolution 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 exorcise all evil from it. We can only hope that decentralization gives the better centers the chance to develop better alternatives, and that the others will follow. As a consequence, the most important comparison should not be between the different urban constitutions , but rather between a polycentric system in which they can experiment and a monocentric system, in which a single center controls decision. Viewed from this angle there is a clear indication that cities learned from each other in order to adopt a more stable, a more democratic and a more diffuse form of government83. A good illustration in this respect is 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

In Flanders, where the commune-movement started very early, power in the town government 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 murderous means. 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, cities adopted political constitutions, which were much more "Montesquieuan" in outlook. Beside the 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 all important groups and classes, in order to avoid constant minorization of some groups and to guarantee a broad consensus about important decisions84. During the fourteenth century the Flemish cities, which had passed through a very turbulent and unstable period, adapted their constitutions in the same way. They also constituted larger controlling bodies, which represented the several layers of the population. In Ghent for instance 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 growing intervention of the Burgundian duke in city affairs, which helped to create a new "bourgeoisie", dependant on his pleasure86. A similar process of learning seems to have been the case with the urban financial institutions. Although the history of the urban financial administration in their very beginning is based on conjecture, the scarce historical sources tell us the following story. The early communes did not have a simple treasury in which all revenues of the city were deposited. Revenues were linked 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.

common fields of the city. They considered themselves partially as landlords, renting land to tenants, either to citizens or to farmers "extra muros". Many had important land holdings outside the walls from which they derived an important part of their revenue87. During the fifteenth century the city of Zutphen still derived 40% of its revenue from rents of land holdings88. 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 gild also administered the finances of the early commune89. With the growth of population and the increase of expenses, the financial administration was centralized in the hands of the official city magistrate, mostly the council of "scabini". They rationalized the financial system by moving towards a simple treasury. They maintained the link of some revenues with some expenses however, such as fines for breach of the peace with repairs of the city walls. In another example of this system, the city of Leuven levied taxes on eggs and prostitutes to finance the fees for the hangman90. During the twelfth and thirteenth century the "scabini" introduced additional taxes. The city accounts of numerous Flemish cities show that most taxation was indirect. The regressive character of this form of taxation was tempered because mostly luxury products were subject to the taxation. Although the councils of "scabini" contributed greatly to the rationalization of the city finances, 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 were created, which represented the burgesses , and which were entitled to give advice about the introduction of new taxes91. In Ghent for instance the already mentioned "Collatie" became more and more influential about taxation policy92. A similar movement of popular control was developed about urban expenses . In 1275 the French 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 they had 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
R. Van Uytven, ibid., 242.

89
Walter Prevenier, ibid., 117.

90
R. Van Uytven, ibid., 242.

91
Walter Prevenier, ibid., 121.

92
Marc Boone, Geld en Macht. De Gentse Stadsfinancin en de Bourgondische staatsvorming (13841453). Gent, 1990, 34.

93
Walter Prevenier, ibid., 119.

Although evolution was rather slow and met some resistance, we may say that the Flemish medieval cities gradually evolved to fiscal democracies, in which the principle, "no tax without consent" prevailed. Apparently the cities were able, after a first phase of primitive communalism, 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 sense when applied to the medieval cities. They owned and administered goods in both categories and did not draw the dividing line between public and private. The cities owned and administered goods which we would label now without any hesitation as "public", such as streets, roads, waterways, squares, market-places, drill-grounds for the militias, the city-walls, the city-hall, the belfry, the prison, etc. Although these goods fall theoretically within our modern definition of public domain, they were not always administered in the modern public sense. Because the services of modern governments are reputed to be at the service for all, they are paid by everybody through general 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 the repairs of the small streets94. In addition, most cities required the gild, whose members used the 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, Ghent maintained a long road down south to Champagne97 because it derived profits from the trade exchanges on the famous fairs. If "public" services were not run genuinely "publicly", the city administered many services which 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 widely spread "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. In this way the city disposed of permanent reserves of grain99. Also grain, harvested on the common fields was sometimes sold en masse on the market to reduce the price of bread. In
94
Marc Boone, Geld en Macht, 107.

95
R. Van Uytven, ibid., 244.

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
R. Van Uytven, ibid., 243.

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.

this way the city governments can be compared with central banks, intervening on money markets in order to secure the rate of currencies. It is very tempting to regard this urban economic policy as a kind of mixed economy. For cities 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 of medieval city policy. Within our modern categories, mixed economy refers to a combination of a planned command-economy, organized by the state, with a market-sector. It was neither the intention nor the effect of city governments to plan and to control the economy. They acted as corporate bodies within a broad polycentric system in order to perform some economic functions such as insurance, economics of scale and minimization of free ridership in public good-provision. The "vente aux tapes" of grain, for instance, was a kind of insurance, 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 it become a "mixed" economy ? Of course, one could reply that the cities were different in this respect because they were able to use their territorial monopoly. Because vessels had to pass through a city such as Ghent, situated at the confluence of two navigable rivers, the shipper had little choice. Leaving aside a discussion about the very ambiguous notion of monopoly, it should be emphasized that the several territorial "monopolies, constituted by the different urban centers, were engaged in a bitter competitive struggle. If one city levied excessive taxes on trade, 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, the attempt 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 new questions than solved other ones. For example, there is urgent opportunity to study many aspects of medieval urban constitutions and economic policies more thoroughly by applying recent insights from constitutional economics, game theory and sociology. Many voluminous and sometimes very complete city archives in Europe are waiting for zealous scholars to study them more in detail101. Because it was our aim to provide a broad panorama, we were not able to include more detailed analyses. Neither could we do justice to the many very detailed 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.

Nevertheless, the picture presented here is suggestive for future research opportunities. First, the study of medieval urban culture invites reflection about the relationship between individual liberty and democracy. Some medieval cities developed during the fourteenth and fifteenth 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 of democratic 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, superinterventionist and fiscally gluttonous welfare state. This might indicate that a stable combination of individual liberty and democracy is related, not so much to the quality of voting 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 disastrous political errors, but certainly not for neglecting the problem of the size of democracies. His model 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 are obliged 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 purported dichotomy of state and market. Exponents of this dichotomy regard the state as a set of institutions which are exogenous to the self-regulating mechanisms of social and economic institutions. 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 governments on the other hand, which were certainly influential on the local level, were rather endogenous to the market process. This was true for two reasons. First, they emerged more or less voluntarily like a corporation, second, they provided all kinds of services which we consider now 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 philosophy and economic categories. Once we abandon the idea of a given, territorially established state and allow it to be replaced by voluntarily constituted political communities, the dividing line between exogenous and endogenous institutions, between state and markets, between politics 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 by self-governing bodies, which constitute a common policy. This amalgamation of politics and economics, of public and private institutions, of policy and market inevitably raises the question what should be considered exogenous to this amalgamation. It is, as indicated by the experience of the middle ages, probably no more than 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 contractual relationships between individuals and genuine federation between communities (Pierre-Joseph Proudhon, The Principle of Federation, University of Toronto Press, Toronto, 1979).

respect for the fruits of labor and for peaceful cooperation.