I’ve just read yet another article from the interminable German/Austrian scholarly argument on the constitutional history of the early medieval count. This time it was Erwin Kupfer, ‘Karolingische Grafschaftsstrukturen im bayrisch-österreichischen Raum’, Mitteilungen des Instituts für Österreichische Geschichtsforschung 111 (2003), 1-17. This started out promisingly by arguing that you had to see some spatial element to counties (they weren’t purely created by ‘personal’ ties) and that via charters you can map centres and areas of influence of counts. I thought this might be leading towards a more useful sense of counties as spatially-imagined areas/networks, rather than either as discreet dots of influence (as in the ‘scattered county’ theory) or a simple map of ‘flat’ areas (as in the ‘administrative district’ theory); the sort of thing that Elizabeth Zadora-Rio is arguing for parishes. Unfortunately, rather than developing this, Kupfer then started using Freising charters in which counts are clearly making judgements outside their areas of influence to create a new more complicated idea of how the ‘system’ worked. He thinks counts have personal jurisdiction over cases concerning the nobles in their county community (which he calls a Gefolgschaft = ‘military following’ at one point) wherever their property is, while they have a separate jurisdiction over their territorial county, including the clerics, women and children. This is all deduced from 4 Freising charters, which say nothing about women and children, and don’t specifically say that those involved were in any kind of relationship to the count (or at least Kupfer doesn’t mention it if they do say that). It all once again proves that even when German-speaking scholars talk about ‘Personenverband’ and a state based on personal relationships, they want to lay down the rules on exactly how these worked, as if it’s really a system after all.
This got me thinking more generally about the problems with looking at/for political/legal/administrative ‘systems’ in the early Middle Ages and what they might actually involve. And I think one key difficulty is that often there are two underlying assumptions about what a system involves. One is that it is comprehensive and the other is that it is consistent. In other words, it deals with every case and every case fits into one category for which there is then an appropriate action. In particular, for legal systems, precedence plays a key role here. Precedence means that when you find your system is not actually comprehensive (a new case comes along which doesn’t fit your categories), you use that to create a new category/rule for action, which is then incorporated into the system, from henceforth. With that, a system can in theory expand as necessary almost indefinitely from a few basic rules (as for example with US constitutional law).
Since such rules of precedence have been basic to legal and administrative systems for centuries, it has always seemed logical to reconstruct previous legal/administrative practice based on them. But supposing they don’t actually correspond to circumstances in the early Middle Ages? Supposing in fact we have a system where a) the rules aren’t intended to apply to all circumstances, but only the most ‘common’ events and b) there is no automatic feedback loop of precedents into the machinery (so a lot of things stay undecided)? Is such a world possible?
What I’m wondering is whether we possibly have what I would jokingly called Schrödinger counties a situation where some places are not actually ‘in’ any county until there is a dispute about them? And which, because decisions about them may not be fed back to the centre, may revert to an indeterminate status after the judgement again, only to be redetermined when there is another dispute (and not necessarily in the same way)? And similarly, what if there are equally Schrödinger land-rights, which do not in some sense really exist except when they are being claimed, as I once suggested?
I don’t know whether there is any way to ‘prove’ my suggestion, or if there is any plausible evidence against it: I can see you might well have a solid core of places that are definitely in some county, but the lack of references in Carolingian sources to county borders does suggest that there is some haziness there. The one obvious argument against my suggestion is that it would be a pointless/daft system to have: why would anyone want to have that kind of haziness and allow it to continue, given the obvious inefficiency? To which my reply would be, that we need to think carefully about who legal precedents, routinisation and bureaucracy benefits. I once read a very interesting article by Chris Kelly (I dont unfortunately have the reference to hand), in which he argued that the later Roman emperors deliberately sabotaged their administrative system at times. Their aim was to ensure that gaining office and other privileges remained arbitrary and thus under their personal control. If you look at it like that, a ‘system’ without precedents, in which no decision can therefore ever be regarded as truly final (because it can be decided differently a second time round even if the facts haven’t changed), is a very useful tool of patronage for whoever does the deciding, whether it’s the king or a count. Of course there are problems of getting the balance right, so you can have some routine, fixed decisions and the higher courts dont get completely clogged up (as happened to the palace court under Charlemagne), but such a pattern does at least seem possible, and would explain the paradox of a Carolingian legal landscape that looks both to be a ‘system’ (if looking at a centre creating rules) and intensely dependent on personal relationships (if you look at practice on the ground). If I am by any chance right (and this may be a fairly flimsy hypothesis), it makes a lot of our research look even dicier than it did before, but I think it would be useful to have at least some definite evidence of why I am wrong on this.