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Rights, Relationality, and Membership: Rethinking the Making and Meaning of Citizenship

Published online by Cambridge University Press:  27 December 2018

Margaret R. Somers
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Abstract

The republication after 40 years of T. H. Marshall's Citizenship and Social Class signifies a revived interest in sociolegal historical approaches to citizenship rights. For decades students have been guided by Marshall's classic treatise. But can Marshall's argument for the causal power of the “transition from feudalism to capitalism” continue to provide an adequate grounding for sociolegal approaches to citizenship and rights formation? Building on Marshall's path-breaking expansion of the concept of citizenship, I use institutional analysis and causal narrativity to present an alternative explanation. I argue that modem citizenship rights me a contingent outcome of the convergence of England's medieval legal revolutions with its regionally varied local legal and political cultures, not of the emergence of capitalist markets.

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Articles
Information
Law & Social Inquiry , Volume 19 , Issue 1 , Winter 1994 , pp. 63 - 112
Copyright
Copyright © American Bar Foundation, 1994 

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References

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6 See, e.g., J. H. Barbalet, Citizenship (Minneapolis: University of Minnesota Press, 1989); Turner, Citizenship and Capitalism.Google Scholar

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8 Marshall also has an orphan category of “industrial rights,” which he defines as an aggregate of civil liberties relevant to the industrial sphere of labor.Google Scholar

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21 My conception shares much with others' critiques of Habermas's term, especially on the inseparability of the family from a constituitive role in the public world, e.g., Nancy Fraser, Unruly Practices (Minneapolis: University of Minnesota Press, 1989) and on the centrality of conflict and negotiation among a wider notion of publics than in Habermas's bourgeois ideal, specifically including popular and working-class publics, e.g., Geoff Eley, “Nations, Publics, and Political Cultures: Placing Habermas in the Nineteenth Century,” in Calhoun, Habermas (cited in note 5); Calhoun, “Introduction” (cited in note 5).Google Scholar

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27 Minow, , 96 Yale L.J., for a similar definition of rights to the one I am using here.Google Scholar

28 In Sources of Social Power, Mann addresses the ontological implications of these issues in his distinction between a “societal” versus a “social being.” See at 14–16.Google Scholar

29 Hartog, , 74 J. Am. Hist., for a similar conception of the contested character of American constitutional rights.Google Scholar

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34 Part of the problem with advocating continuity is that it invokes fears of either Whiggishness or conservative Burkeanism, the latter most recently illustrated in the work of J. D. C. Clark. It should be clear, however, in the course of this essay that stressing continuity over rupture is not a political choice but an analytic one that derives from an institutionalist conceptual framework—hardly one associated with either Whigs or Burkeans.Google Scholar

35 For a sampling of regional differences see Andrew Charlesworth, An Atlas of Rural Regional Protest (London: Croon Helm, 1983) (“Charlesworth, Atlas”); Derek Gregory, Regional Transformation and Industrial Revolution (Minneapolis: University of Minnesota Press, 1982); Sharp, Contempt (cited in note 33); Larry Poos, “The Social Context of the Statute of Labourers' Enforcement,” 1 Law & Hist. Rev. 27 (Spring 1983); John Bohstedt, Riots and Community Politics (Cambridge, Mass.: Harvard University Press, 1983) (“Bohstedt, Riots and Community Politics”).Google Scholar

36 Although the phenomena of wide spread rural industrialization in the 17th and 18th centuries has long been noted among certain economic historians, the new and more theoretically informed notion of proto-industry is a recent development. See Franklin Mendels, “Proto-Industrialization: The First Phase of the Industralization Process,” 32 J. Econ. Hist. 241 (1972); Charles Tilly, “Flows of Capital and Forms of Industry in Europe, 1500–1900,” 12 Theory B Soc'y 123 (1983); Peter Kreidte, Hans Medick, & J. Schlumbohm, Industrialization before Industrialization (Cambridge: Cambridge University Press, 1982); Rudolf Braun, “Early Industralization and Demographic Change in the Canton of Zurich,” in Charles Tilly, ed., Historical Studies of Changing Fertility 289 (Princeton, N.J.: Princeton University Press, 1978); Rudolf Braun, “The Impact of Cottage Industry on an Agricultural Population,” in David Landes, ed., The Rise of Capitalism (New York: Macmillan, 1966).Google Scholar

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40 Rick Lempert has pointed out correctly that these questions can be sensibly posed as a sociology of knowledge question: Why do we ignore certain rights and not others in our theories of modern citizenship? The answer, in part, is that theories of citizenship are embedded within a prevailing sociolegal knowledge culture (similar to Kuhn's paradigm) constituted by a master-narrative about modern law and institutions which largely defines in advance what is to count as a modem right in the first place. The importance of this sociolegal knowledge culture is taken up in the conclusion at greater length. See also Somers, “Where is Social Theory?” (cited in note 14).Google Scholar

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47 The capacity for its “precociousness” in centralized administrative methods has been made legendary through the remarkable findings of the Domesday Books.Google Scholar

48 No one has done more for us to come to appreciate the centrality of war to state formation than Charles Tilly. See especially his Coercion (cited in note 2).Google Scholar

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52 Cited in note 14.Google Scholar

53 Tilly in Coercion 106, 115 (cited in note 2). deals with the necessities of national homogenization.Google Scholar

54 Id. at 130.Google Scholar

55 This interesting question was raised by an anonymous LSI referee.Google Scholar

56 Rappaport, Worlds within Worlds.Google Scholar

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59 Cited in Donald Hansen, From Kingdom to Commonwealth: The Development of Civic Consciousness in English Political Thought 157 (Cambridge, Mass.: Harvard University Press, 1970) (“Hansen, From Kingdom to Commonwealth”).Google Scholar

60 Id.Google Scholar

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62 For examples of equity in copyholding, see Gray, Copyhold (cited in note 39).Google Scholar

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66 John Ganden, “A Sermon Preached before the Judges at Chemeford,” cited in John Walter, “The Essex Grain Rioters,” in John Brewer & John Styles, An Ungovernable People 47 (New Brunswick, N.J.: Rutgers University Press, 1980) (“Brewer & Styles, Ungovernable People?”).Google Scholar

67 Brewer, John, “The Wilkesites and the Law, 1763–74: A Study of Radical Notions of Governance,” in Brewer, & Styles, , Ungouemabk People 133.Google Scholar

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69 Noticeably absent from my argument is discussion of the king's peace or the criminal law—arguably the dimensions of royal law that most ordinary people were confronted with daily. There is a wealth of literature and debate on the social history of the criminal law (see, e.g., the vast debate surrounding Douglas Hay's edited volume, Albion's Fatal Tree: Crime and Society in Eighteenth-century England (New York: Pantheon Books, 1975), and E. P. Thompson, Whigs and Hunters: The Origin of the Black Act (New York: Pantheon, 1975)) (“Thompson, Whigs and Hunters”). Less attention has been paid these other aspects of law that I argue were so central to the formation of citizenship identities.Google Scholar

70 The next few paragraphs draw from Somers, 58 Am. Soc. Rev. (cited in note 7).Google Scholar

71 In France, by contrast, the community was excluded. See Bruce Lenman & Geoffrey Parker, “The State, the Community, and the Criminal Law in Early Modem Europe,” in V. A. C. Gatrell et al., eds., Crime and the Law 11 (London: Europa, 1980) (“Lenman & Parker, ‘The State’”).Google Scholar

72 Whereas the French state sold and controlled over 12,000 judiciary jobs throughout the land churning out a massive army of central bureaucrats who tried (but failed) to swallow up local community practices, in England in the 16th century there were only 15 Royal judges; see Lenman & Parker, “The State”.Google Scholar

73 Strayer, Medieval Origins of Modern State 41 (cited in note 49); see also Pollock & Maitland, History of English Law 79, 136 (cited in note 44); William S. Holdsworth, 1 A History of English Law (2d ed. London: Methuen & Co., 1914); T. Plucknett, A Concise History of the Common Law (5th ed. Boston: Little, Brown, 1956).Google Scholar

74 See especially Thomas A. Green, Verdict according to Conscience (Chicago: University of Chicago Press, 1955) (“Green, Verdict”); Thomas A. Green & J. S. Cockburn, eds., Twelve Good Men and True: The Criminal Trial Jury in England, 1200–1800 (Princeton, N.J.: Princeton University Press, 1988) (“Green & Cockburn, Twelve Good Men and True”); O'Gorman, 135 Past Past & Present (cited in note 31); Cynthia Herrup, “The Counties and the Country: Some Thoughts on Seventeenth-Century Historiography,” 8 Soc. Hist. 169 (1983); id., The Common Peace (Cambridge: Cambridge University Press, 1987) (“Herrup, The Common Peace”).Google Scholar

75 This approach dovetails with the recent scholarship of Green, Verdict; Hemp, The Common Peace; John Beattie, Crime and the Courts in England: 1660–1800 (Princeton, N.J.: Princeton University Press, 1986); Brewer & Styles, Ungovernable People? (cited in note 66); Cynthia Herrup, “Law and Morality in Seventeenth-Century England,” 106 Past & Present 102 (1985).CrossRefGoogle Scholar

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77 See Minchinton, Wage Regulation (cited in note 32).Google Scholar

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79 The classic text on customary rights of peasants in the manorial courts is still George Homans, English Villagers of the Thirteenth Century (New York: Norton, 1960 [1940]).Google Scholar

80 Ault, , Open-Field Farming; Gray, Copyhold; Yeazell, Medieval Group Litigation 46, 132 (all cited in note 39).Google Scholar

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82 The import of the “law in context” was originally developed in the early 20th-century American school of Legal Realism; see Laura Kalman, Legal Realism at Yale (New Haven, Conn.: Yale University Press, 1987). More recently, the contextual focus has been taken up by anthropologists; see Clifford Geertz, “Local Knowledge: Fact and Law in Comparative Perspective,” in his Local Knowledge 167 (New York: Basic Books, 1983); and Moore, Law as Process (cited in note 18).Google Scholar

83 The phrase comes from Perez Zagorin.Google Scholar

84 From a vast comparative perspective Weber argues this in Max Weber, The City, trans. & ed. D. Martindale & G. Newsmith (New York: Free Press, 1958) (“Weber, The City”).Google Scholar

85 Alan Harding, “Political Liberty in the Middle Ages,” 55 Speculum 427, 442 (1980); Smith, English Gilds (cited in note 46); M. Bloch, 1 Feudal Society (Chicago: University of Chicago Press, 1961); Black, Guilds and Civil Society 39, 42 (cited in note 46).Google Scholar

86 Nor was the city the only place; see Somers, “The People and the Law,” passim (cited in note 11).Google Scholar

87 The liberal versus communitarian polarization can be seen as more of a philosophical prejudice than a historical one.Google Scholar

88 On the process of transition from corporate to individual liberty, see Harding, 55 Speculum at 442.Google Scholar

89 On Italian cities, see Lauro Martines, Power and Imagination: City-states in Renaissance Italy (New York: Knopf, 1979). See also the work of Larry Miller, “Machiavelli's Politics” (unpublished ms.), who has written on the historical conditions in which Macchiavelli formulated his political theories.Google Scholar

90 I am grateful to Larry Miller for his suggestions on this aspect of feudal “inspiration” for the expansion of rights to the urban sphere.Google Scholar

91 G. A. Williams, Medieval London: From Commune to Capital 2 (London: Athlone Press, 1963) (“Williams, Medieval London”).Google Scholar

92 The merchant guild preceded the crafts guild, but the latter (composed of masters and journeymen) became far more important.Google Scholar

93 See note 29.Google Scholar

94 Rappaport, , Worlds within Worlds 31 (cited in note 46).Google Scholar

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96 Rappaport, , Worlds within Worlds 49.Google Scholar

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101 Tramping, one of the most important forms of labor migration, was contained within social membership networks; see Leeson, Travelling Brothers.Google Scholar

102 10 Oxford English Dictionary 815 (Oxford: Oxford University Press, 1933). In ancient Greece, the craftsmen were, like priests and doctors, believed to possess some secret power; see M. Godelier, “Work and its Representations: A Research Proposal,” 10 Hist. Work-shop J. (1980).Google Scholar

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118 Robert Brenner and Perry Anderson use these terms. See R. Brenner, “Capitalism, Aristocracy and the English Revolution,” Davis Center Paper (Fall 1989); Anderson, Lineages of Absolutist State (cited in note 49).Google Scholar

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