A Brief Synopsis on the Historical Precursors to Civil & Common Law: Feudalism

Feudalism and the Development of Common Law      

In its most basic form, feudalism is a social, political, legal, and military relationship based on land ownership.  Historians to this day have a hard time developing an exact definition since there is not a one-size-fits-all feudal relationship.  Joseph Strayer, a leading twentieth century medieval historian chooses not to offer an exact definition but instead describes its most rudimentary characteristics:  “…a fragmentation of political authority, public power in private hands, and a military system in which an essential part of the armed forces is secured through private contracts.”[1]  The private contracts alluded to refers to the agreement between a lord and a vassal—a lord being an individual of superior rank or class of nobility and the vassal being one of inferior rank or class—whereby the lord grants the vassal the use of a certain piece of land, or fief, in exchange for military service and (sometimes) military or other forms of counsel.  It must be clarified here that the terms “lord” and “vassal” are relative, i.e., one could be a lord and a vassal at the same time.  In theory, it starts with the king, who is titleholder to all the land comprising his kingdom. 

To preserve and protect the territory under his rule, the king divided his kingdom into fiefs, and he would then gift these fiefs to his vassals, who are members of the royal family, clergy, or aristocracy (fragmentation of political authority).  In exchange, the king receives allegiance, military service, and private counsel.  In theory, the land gifted by the king to his vassals was still the property of the King and each vassal was charged with certain duties, e.g., collects and deliver taxes to the king and other administrative duties, along with establishing local courts and making and enforcing laws (public power in private hands).  The fiefs gifted by the king would be too large to be governed by one person, so the noble, who now in this subsequent relationship becomes the lord, would divvy his land into smaller fiefs and gift them to other inferior noblemen, who in this relationship are now the vassals.  Just as with the relationship between King and his vassals, all lower lords had similar duties to their Lord and also were required to protect those who lived and worked on his land, including the making and enforcing of local laws and deciding disputes, which in time would lead to a definite power struggle between nobles.  Practically all Western Europe, including England,[2] practiced some form of this feudal arrangement, which led to a hierarchy of nobles.[3]  For example, a duke (from the Latin “Dux” or “Leader” or “Commander”), was the lord of a duchy; each duchy was then divided into different counties and controlled by counts (from the Latin “Comes” or “Companion” or “Associate” of the emperor).  With the arrival of the stirrup and high-backed saddle to Europe in roughly the seventh century, battle on horseback became more and more common, eventually leading to the development of the knight, who would be placed at the bottom rung of the aristocratic hierarchy and would receive fiefs from lower lords in exchange for military aid.  At first, knights were considered enforcers of local laws on behalf of their lord. The idea of the chivalric night would not occur until many centuries later.

On the other end of the spectrum, i.e., those who did not belong to the aristocracy, were peasants and serfs.  Peasants were poor yet free individuals while serfs were not free.  Serfdom can be described as a type of slavery with the main difference being that a serf was a piece of property tied to a specific piece of land.  Whoever owned that piece of land owned the serf.  The resulting hierarchy, which is highlighted in Figure 6 to the left, is not directly important for our purposes here; however, what is important is that we understand that practically the entirety of the former Western Roman Empire was now under a feudalistic system, which was the basis for practically every dispute that would arise until the system was abolished in the nineteenth century, although in some places, such as Scotland, the feudal system lasted until the twenty-first these painkillers are making me loopy him or century.

By the time of the sixth and seventh centuries, as Christianity began to spread throughout continental Europe and the Church started to gain a stronger foothold on European culture, government, and society, feudalism started to fragment Germanic kingdoms even further and forged a power struggle between kings and the nobility.  This, in turn, created a surplus of disparate legal systems, all of which were a mixture of Roman, German, Church (Canon), and customary law.  German and Church law were vastly influenced by the Roman codified law and allowed it to remain relevant—even experiencing a revival in later centuries. 

^[1] Strayer, J., Feudalism 12-13 (1965)

[2] After the Eleventh Century

[3] Clergy were also considered as part of the aristocratic class, depending on their status within the Catholic Church.