ABSTRACT
The pre-eminence given to the state in the modern world contrasts sharply with the mediaeval outlook. In the feudal world the primary concept was not the state but law-a law not made by politicians but part of a universal and eternal order, to be discovered by a study of custom and precedent. Kings, councils, and judges found and formulated it but could not make it; for to create new law would be to impose a new obligation by an act of will, and only God could do that. Political authorities-i.e. those exercising legal authority backed by coercive power-were regarded as being as much under law as any other corporate institution; for law was not thought of as the creation of the political order, nor as linked to it any more intimately than to any other, Law was thought of as the eternal and objectively valid normative system within which all associations were contained, and from which all roles drew appropriate rights and duties. No feudal king could have said, with James I, 'Kings are not only God's lieutenants upon earth, but even by God himself they are called gods'; or with Bossuet, 'O rois, vous êtes des dieux'. Such pre-eminence as the feudal king possessed dervied from the privileges and prerogatives of his legal status in the social hierarchy. Until about the thirteenth century, when the notions of Roman law were rediscovered and began to penetrate western legal thinking, no distinction was drawn between private and public law, between the king's private rights as an individual with a certain status, and his public authority as representing the whole community. The idea of a political order-a state-different in kind from kindred, feudal, or economic groupings, hardly existed. The commonwealth had its law; the king was primus inter pares among his barons; his subjects were variously associated in their corporations, each of which was thought of as a partial expression of the law. Society was a hierarchy, organically conceived, within which everyone had economic, military, and religious functions deriving from customary status.
