Ch. 1.4. Early Medieval Custom
The final source of modern Western law described in this chapter consists of the customary norms that prevailed over much of western Europe between the fall of the western Roman Empire and the revival of formal law some six or seven centuries later (ca. 500-1200 CE/AD). The formal system of most relevance to Anglo-American law that developed out of early medieval custom in the 1100s in England is known as Common Law (see ch. 2).
Informal Power: During the Early Middle Ages (ca. 500-1100 CE), traditionally known as Western Europe’s ‘dark ages,’ money and literacy were scarce and bureaucratic government, or the ‘state,’ was, in most places, very weak. The weakness of bureaucratic states before ca. 1200 CE meant that local military and political power was manifested primarily through interpersonal or ‘face-to-face’ relations. These local social and political relations tended to subsume an individual’s legal rights, such as claims to status or property, so that in a real sense ‘objective’ legal rights lacked any separate existence. Social relations were instead based on reciprocal obligations, or what we might consider a kind of social contract. Yet at the same time, these relations also assumed that people were unequal, and occupied different ranks or status positions.
Feudalism: The most well-known medieval social relation was vassalage, or the feudal contract, in which a higher-ranking ‘lord’ granted his protection and a landed estate (called a fief) to a lower-ranking but still noble vassal. In return the vassal owed the lord military service, typically as a mounted ‘knight,’ and served in his lord’s ‘court’ as an adviser. The ceremony by which a person pledged to be a lord’s vassal was known as ‘homage.’
Manorialism: A much larger proportion of the population consisted of unfree ‘serfs,’ who were subject to their lord’s legal jurisdiction and required to remain on their lord’s estate or ‘manor.’ In return for this land, serfs were obligated to provide agricultural ‘labor services’ to the lord, i.e., to work the lord’s land. Yet serfs, unlike slaves (who by 1200 were rare in Europe), usually had some customary rights to the land they held from the lord, and their obligations to the lord were limited by custom.
Vassalage and serfdom, or ‘feudalism’ and ‘manorialism,’ were both based on assumptions of inherent social inequality, and yet both also required constant cooperation between inferiors and superiors.
Traditional Kingship: Although in popular understanding traditional kings were all-powerful, in fact, as the above discussion suggests, their power was limited in many ways. In the first place, rulers depended on the cooperation of their highest-ranking nobles. In some cases leading nobles actually elected their kings, and in most cases a very poor leader would have to contend with open rebellion. Moreover, both nobles and many others seem to have had some claim to property rights. Women too had some property rights–though women’s independence could also be severely limited (e.g., with respect to marriage). For an example of how traditional kingship was represented, see King Henry I’s coronation charter of 1100 on my Legal Studies website (Sources of Law, 1.5).