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and support for elite organizations, but without consolidated control of the military, therefore limit the range of impersonal relationships among elites. Consolidated control of the military removes this source of risk and thus extends the range and scope of impersonal relationships among elites.

All three of the doorstep conditions are consistent with the logic of the natural state and arise historically within limited access orders. The establishment of laws and courts is the means by which the dominant coalition regularizes relations among elites. Perpetually lived organizations are a vehicle for limiting entry and generating rents in a systematic manner. Consolidating military power under control of the political system creates a monopoly on violence that reduces the frequency of violence in a state. Combined, the three doorstep conditions create the possibility of impersonal relationships within the elite, even though that was not necessarily the result elites intended.

5.3 Doorstep Condition #1: Rule of Law for Elites

Rule of law covers a wide spectrum of social, legal, and political arrangements that vary in many dimensions. Rule of law for elites in a natural state is not the same thing as rule of law in a modern open access society. It is not unbiased law covering a wide range of civil and criminal activities, applying to everyone equally within the society, and structuring public as well as private relationships. Throughout this chapter, the term individual is used to designate individual human beings and persons to indicate legal persons who may or may not be individuals.

Several legal systems made appearances in earlier chapters: the Roman law and its successors in the European canon and civil law, the Salic codes of the ancient Franks, and the land law of medieval England. The privilege of administering justice provides valuable rents to some elites in natural states. In early states, law was often administered in connection with religious authority. As societies develop more durable institutions for the state, the law formalizes how the dominant coalition uses its coercive power to discipline and punish individuals inside and outside of the coalition.

The administration of law must confront two conflicting aspects of reality within natural states. Most elites benefit, in principle, from welldefined rules enforced in an unbiased manner. Knowing the structure of relationships among private individuals (private law) and how relationships among individuals, organizations, and the state itself (public law) enhances the value of elite exchange and produces valuable information for all elites.

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At the same time, elites know that political, economic, and military power are not distributed equally throughout the coalition. Formal laws that are inconsistent with the distribution of interests within the coalition will not be enforced for long, even if they remain on the books. One way to resolve these conflicting aspects utilizes differences in identity to construct a law that can be credibly enforced in the face of wide differences in the power and influence of members of society. Recall the examples of Salic law: Killing a lord involved a much greater penalty than killing a slave. Legal systems do not have to treat everyone the same, and the extent to which legal systems formally treat individuals differently creates differences in identity.

Indeed, legal systems vary on many dimensions. One is the scope of jurisdiction in terms of activities and functions that are regulated (land, property, crime, contract, and so on). Another is the scope of jurisdiction over individuals (in medieval England only freeholders had access to the king’s courts for land disputes). A third dimension is the differentiation among categories of persons that the legal system recognizes, which can range from homogeneous (all persons the same) to idiosyncratic (each individual possesses unique characteristics). A fourth dimension is the extent to which enforcement of laws and rendering of decisions is unbiased.

Set aside questions about the scope and public or private structure of legal systems for a moment and focus only on categorical differentiation of legal persons and the extent of bias. In a fragile natural state, regardless of the categorical differentiation of legal persons, laws will be enforced in ways that meet the immediate needs of the dominant coalition. Fragile natural states are unlikely to have unbiased enforcement of laws, no matter how the law or persons are defined. As basic natural states emerge and develop more durable institutional structures for their states, they are likely to create paths of legal development that more or less differentiate among categories of legal persons.

Consider the distinction between public and private law. The definition of legal persons and the specification of the legal rights attached to specific legal persons are elements of public law. Chapter 2 introduced the European history of the king’s two bodies; the idea that the king possessed a mortal, individual body and a corporate, immortal body (or person). The king’s dignity, his corporate person, was a legal entity, uniquely defined, protected from insult or slight by les majeste, endowed with privileges and obligations that kings confirmed in their coronation oaths.3 All manner

3At the end of his life the great English legal scholar F. W. Maitland struggled to understand the concept of the king as a “corporation sole” (2003, pp. 9–31). Maitland had become

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of major personages possessed a social persona whose uniquely defined identity (and therefore personal rather than impersonal identity) contained the institutionalized elements of that person’s social and legal standing, as well as the person’s inherent privileges to economic, political, and military assets and other social functions.

In modern societies, public law includes various categories, including constitutional law, administrative law, and statutory law. In earlier societies, public law was constitutional law as well, but the constitution of the society was not defined in terms of relationships among abstract and impersonal actors – president, senator, prime minister, the bureaucracy, and citizens – but among live individuals such as kings, dukes, popes, and bishops whose identity was an amalgam of individual characteristics and social characteristics of their office. In modern open access societies, public offices have become impersonally defined and distinct from the individual identity of the person who occupies the office. In contrast, in earlier societies and in most natural states today, public law is unable to clearly separate the identities of public persons as specific individuals from the privileges they possess as office holders and from the organization they represent or head.

For example, when Charlemagne issued a diploma to an abbey granting it rights to certain revenues and exemptions from other taxes in perpetuity, he not only chartered an organization, he created a public person, the abbot, who possessed certain privileges and duties. The grants of rights and privileges to every abbey and abbot differed – they were inherently personal. The exact relationship between the abbot as an individual and the abbot as the office holder was also not perfectly clear.

Many important attributes of significant legal persons are organizational rather than individual. In Rome and Europe up to the nineteenth century, all formal organizations were public law entities: entities created by the state with a place fixed in the public order. Kings, dukes, earls, popes, and bishops possessed privileges that enabled them to form, govern, and direct organizations. The laws limiting the number of liveried retainers of the fourteenth-century English tenants in chief, for example, not only created a special privilege for powerful lords but also denied those right to all other lords.

What then of rule of law for elites? Elements of rule of law for elites arise when aspects of the law apply equally to all elites and are enforced without

interested in the work of Gierke (1958[1900]) who interpreted the law and history in terms of corporate entities. Kantorowicz (1997[1957]) solved Maitland’s puzzle of the corporation sole by elucidating the concept of the king’s two bodies.

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bias. Rule of law for elites is not a zero/one variable; it can exist on some dimensions but not others. In English law, all freeholders enjoyed a shared, common right of inheritance. This right originated with the promise made by Henry I in his coronation oath of 1100 that on the death of a tenant, his heirs could enter into their inheritance after the payment of a just relief. Early English land laws created categorical differentiation among types of elites. Over a long period of five centuries, however, land law came to recognize only one type of elite landowner, the freeholder (who possessed political rights denied to the copyholder), and one tenure of land, free and common socage. With the passage of the Tenures Abolition Act in 1660, the English system finally possessed rule of law for elite land.

English land law is only an example of how rule of law for elites may develop, but it illustrates important implications of how rule of law for elites affects the transition. Rule of law for elites with respect to land created an environment in which exchanges of land among elites occurred without reference to the personal identity of the parties. Truly impersonal exchange over elite landholdings, particularly at the level of manors, was impossible as late as the sixteenth century. In the land wars, more powerful lords had an advantage in enforcing their rights in the courts; in effect, ownership rights varied with the power of the lord.

By instituting a common set of rights held by all elites, rule of law for elites created a common interest in defending those rights. A great deal of English history is written in terms of the tensions and conflict in the relationships between the king and nobility. By ignoring intra-elite disputes, historians overemphasize king–nobility disputes. Intra-elite competition dominated conflicts over land, not competition between the nobility and the crown. The Wars of the Roses, the largest land war in English history, was an intraelite conflict. Intra-elite competition between the Chancery Courts and the Common Law courts, both royal courts, for jurisdiction and revenue produced many of the changes in English land law. Once all elite landowners possessed the same right, such as the right of inheritance and later the right to devise by will, the elite had a united interest to protect those rights, be it against the king or an element within the dominant coalition. The elites could collectively use the land more effectively because all elites had the same security of property. Ownership of land no longer gravitated to powerful individuals simply because they were politically powerful; it gravitated to individuals who would use ownership of the land most effectively. As long as landownership serves both a political and an economic purpose, it will serve its economic purpose less well than if ownership responds more closely to economic incentives.