Medieval Emergencies and the Contemporary Debate
By Guy Lurie
Athens Journal of Law, Vol.1:1 (2015)
Abstract: The contemporary debate on emergencies and the state of exception often relies on historical examples. Yet, the most recent discussions on the state of exception (a legal construct that deals with emergencies) also assume its modern inception. This article shows that medieval France formulated its own state of exception, meant to deal with emergencies, based on the legal principle of necessity. This article has two purposes. First, it challenges the historical narrative inherent in the contemporary debate, which assumes the modern inception of the state of exception. Second, it reinforces the trepidation with which many scholars today view the uses and abuses of the state of exception. This article does so by showing that the French crown used and abused the medieval principle of necessity in ways similar to current uses of the state of exception; it served similar purposes. Just as some scholars fear today, the French medieval state of exception often served as a pretext meant to change the legal order, turning the exception into the ordinary. The French crown used the state of exception to enhance its power, and it was central in the long process of building the early-modern French state.
Introduction: Illegitimate repeated use of emergency powers finally elicited a dramatic confrontation. Converging from all over France, the political elite demanded that the regime immediately cease its attempts to continue collecting a tax that originally had been demanded as an emergency measure for a war that was now already over. At first, King Philip IV was unbending. He wanted to continue collecting the tax and remained recalcitrant through most of November 1314. Leagues established to resist and protest against the tax collection grew stronger throughout that month. By the end of November, the king, faced with collective resistance and suffering from an ultimately fatal illness, called a stop to the collection. The protest was successful.
One could have thought that this dramatic protest against a perceived illegitimate use of emergency powers was taking place today. It seems all too relevant. Why then is this event and others like it completely absent from the contemporary debate taking place on the uses and abuses of emergency powers? Why is it that even when alluding to historical models of regulating emergency powers, the examples are almost all taken from the modern postFrench revolution period, or, from ancient republican Roman times (the famous dictator model)? Why does the medieval history of the state of exception (a legal construct that deals with emergencies) remain unstudied and ignored by contemporary jurisprudential debates? The present article rehabilitates the medieval history of emergencies and their legal regulation in the specific context of France.