Feudal Law

THE TERM "FEUDALISM" was only invented in the eighteenth century. Prior to that time-ever since the twelfth century, in fact -- people had spoken and written not of feudalism or of "feudal society" but of "feudal law,"referring primarily to the system of rights and obligations associated with lord-vassal relationships and dependent land tenures.

Eventually, the term feudalism came to be associated with an older phrase, dating from the time of the Reformation: "the Middle Ages." Feudalism was said to be that type of society which had existed in the West during the Middle Ages; more than that, it was said to be a type of society that had existed in non­Western cultures as well, during the "medieval" period of their history. This usage conceals an ethnocentric assumption that certain characteristics of Western social and economic history may also be taken to define the social-economic order of other societies. Moreover, many historians of the nineteenth and twentieth centuries, by neglecting the belief system, the relations between ecclesiastical and secular authorities, and above all, the legal institutions and concepts that accompanied the feudal economies of the West, have given a distorted view of the dynamics of so-called feudalism, both in the West and elsewhere. Marxist historians, in particular, who treat the mode and relations of production as the infrastructure or base of feudal society, and the politics, ideology, and law as a superstructure, have

failed to show why Western feudalism produced a fundamentally

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different kind of superstructure from that produced by, say, Japanese or Russian feudalism.

At the same time, many other historians who reject the Marxian categories of base and superstructure have also failed to show in any systematic way the interaction between the political, ideological, and legal institutions and concepts of the West, on the one hand, and such social and economic institutions as dependent land tenure, lord-vassal relations, and serfdom, on the other. But if the former are not merely the reflection and instrument of the latter, as Marx claimed, then what are the relations between the two? Can it be shown that, contrary to Marxist theory, "consciousness" determined "being"? Or, if these categories themselves are wrong, what categories should replace them?

The relationships between social and economic factors on one side and political and ideological factors on the other side can be clarified by proceeding from the basis of four methodological postulates.

First, legal institutions should be seen to overlap the dividing line between social-economic factors and political-ideological factors. Law must be treated as an essential part of both the material structure of Western society ("mode and relations of production") and its spiritual life ("political and social consciousness") -- as both "base" and "superstructure."

Second, an analysis should be made, not of feudalism but of the different kinds of law that regulated social and economic relations in the period under consideration. This analysis must include not only feudal law in the technical sense of that phrase, that is, the law regulating feudal tenures (fiefs) and lord-vassal relations (fealty), but also manorial law, the law regulating lord-peasant relations and agricultural production and manorial life generally. The juxtaposition of feudal law and manorial law should help to overcome the objections of those social and economic historians who rightly charge certain political and legal historians with having neglected a principal feature of feudalism, the existence of a subject peasantry bound to the land.

Third, a dynamic element is added to the study of Western feudalism by examining the changes that took place in feudal and manorial law from the time of the Papal Revolution. For the tremendous convulsion of Europe which accompanied the so-called Gregorian Reform and Investiture Struggle could not have left legal regulation of the mode and

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relations of production unaffected, and indeed this periodization of Western feudalism is supported by leading social and economic historians. 1 Marc Bloch divides feudalism into the "first feudal age," from the eighth to the mid_eleventh century, and the "second feudal age," from the mid_ eleventh to the fifteenth century. "There were," he writes "in a word, two successive feudal ages, very different from one another in their essential character." Similarly, Georges Duby considers the eleventh century to be the critical period in the emergence of Western feudalism, and he calls the years from 1070 to 1180 "the century of great progress," in which feudalism as a system was established throughout Europe.

Fourth, it should be recognized that prior to the mid- eleventh century lord-vassal relations and land tenure, on the one hand, and lord-peasant relations and manorial life, on the other, were not subjected to systematic legal regulation; that although they were legally regulated by custom (including customary law), feudal and manorial custom were largely inchoate and diffused in general social and economic custom; and that a most important aspect of the crucial changes that took place in the eleventh and twelfth centuries was that both feudal law and manorial law were disembedded and substantially systematized. If the late Russian historian George Vernadsky was correct in saying that Russian feudalism was "feudalism without feudal law," it can also be said that Western feudalism before the eleventh century was "feudalism without feudal law." Of course, that is an exaggeration: there was some feudal law (and some manorial law) in both Russia and the Frankish Empire, but it was largely diffuse and unsystematized. In the century between 1050 and 1150 feudalism in the West became legalized, in the sense that feudal law and manorial law were for the first time conceived as integrated bodies of law, with a life of their own, by which all aspects of feudal and manorial relations were consciously governed.