I am no legal expert (“we have noticed Paul”), but I do want to give an hint about what I am on about when I mention the words “Feudal law” or Roman law or modern law – it if be wrong….. well see later for my “get out of jail” card on that.
Before I say anything more I had better state that one can have serfdom without feudalism (for example the Emperor Diocletian established de facto serfdom by declaring that peasants could not leave the land – and many other legal systems had done this before him) and one can have feudalism without serfdom (places like Sark, feudal to only a couple of years ago, were not known for serfdom).
“Feudalism” is (if it is anything – other than just a word) a system where people swear loyality (they make an active choice) it is a MILITARY thing at base, and “feudal” law is about (fundementally) such blood contracts (after all one is swearing to defend someone to the death – one’s own death, and the other side of this contract, the obligations of one’s lord, has to be fundemental also) are based on tradition and custom – made into formal law. That is why (by the way) “Feudal” law can be different in different places – different old customs and traditions.
“Feudal” law can not, logically, be anything else (than old customs and traditions presented as formal law). as if this law can be changed by “the Prince” (either a Roman Emperor or a modern “legislature”) then they can not be part of a contract – as they are, effectively, “above the law” (because the can change it whenever they feel like doing so).
One swears to defend one’s lord to the death and he (or she – for a fedual overlord can be female) swears to unhold the law (as, for example, Henry the First of England did in his formal charter of 1100 – in order to get the people to rally to him against his older brothers) – if the “the law” is simply whatever they say it is (as with a Roman Emperor or a modern Parliament or other legislature) then this is not Feudalism – any more than the “my honour is loyality” of the SS was the warrior code of Northman (indeed, as Tolkien noted, to pretend that there is no difference between honour and loyality – and to hold that loyality is unconditional, i.e. that one will do dishonorable things if ordered to do so, is a direct and deliberate MOCKERY of the traditional honour code). One swears to to defend one’s lord to the death (one’s own death) in return not for “protection” (that is a Roman view of law – or a modern one – after all if one is promising to shed one’s life’s blood for someone else personal protection is not the main thing in play), but for JUSTICE for the upholding of tradition and custom. Seen as a manifestation in this world of divine and universal justice (different in details from place to place – but not in fundemenal PRINCIPLE and, for the same reason, not changing fundemenally over time). This is why the oath is a sacred thing – based on the creator of the universe and the natural law itself.
“All theory Paul – what does this mean in PRACTICE?”
First for Roman law (i.e. late Roman law – the law of the Empire). For this I will turn to “Justinian’s Institutes” (Cornell University Press 1987). By the way this is only a tiny part of Roman law of the time – there were many volumes of the writings of previous law officers and the legislation of Emperors (actually the truth of the so called “Code of Justinian” is that most of it is not from Justinian and it is not a code, the “Twelve Tables” back in 450 B.C. may or may not have been a code, but the endless rules and regulations that Romans lived under more than a thousand years later certainly were not a code).
In this work it is stated (Book Two, section one “The Classification of Things”) that neither the seashore or rivers can be privately owned.
So no private beaches under Roman law – and no protected fishing (or protection of water supply from rivers) either.
Anyone may fish where they like – and no private person or association (what Romans would call a “collegia” – spelling alert) may restrict water supply by stating that it is private (they can do that with a well – but not with a river).
In the modern age such thing as Spanish law (that holds that no river is private) and even supposedly Common Law New Zealand (where the last Labour party government nationalized the sea shore) follow the idea that neither rivers or the sea shore (the beaches) can be private property.
It is very different under Feudal law – the notion of “private property” may not be formally stated (that depends on the exact type of “Feudal” law we are talking about – for example it was stated under the law of Norway) the King (as lord of lords) may (or may not) formally “own” everthing – but he certainly can not BEHAVE as if he does (more on that later).
And rivers and beaches can be de facto owned under Feudal law.
For example under Scots law (inherited from their local version of feudal law) right up to 1845, if you wanted to sell something you gave a public display of what it was – remember most people could not read.
And if you wanted to sell private fishing rights (something that can not exist under Roman law) you, as well making a speech before witnesses (plus anyone who wanted to turn up to the river to watch the former owner of the fishing rights sell them to someone else) you handed over a fish.
For land it was some earth (on the site you were selling – again before witnesses), for the hunting rights of birds it was a bird (again….) and so on.
Also under Roman law the owner of a transport service (say someone who makes their living with a couch or carts) or the owner of an inn (or other establishment of business) could not turn away a customer – could not “discriminate” against them (to use modern language) as the owner of a transport service was a “common carrier” and the owner of an inn provided “public accomidations”.
Feudal law does not even know what “common carriers” and “public accomidations” are.
If you owned a cart (or some such) you could transport people or goods. And if you owned a building you could put people up (in return for payment).
But you did not have to do so – if you did not want to.
Owning a cart did not make you part of a special caste that served the state (indeed the term “state” does not really fit into feudal thinking – it is a Roman term or a modern term).
Ditto if you owned a building and put people (if you had a mind to) in return for money, that did not mean you were a special sort of animal called a “public accomidations” person serving the needs of the state (whatever “the state” is supposed to be).
But all the above misses the point anyway……..
As the point is – if Justinian (or some other Emperor) had decided (on a whim) to change the above “legal principles” they could (they were above the law – and could make the law whatever their WILL wished it to be).
If a feudal overlord said one day “I have decided to change the law – after all the law is whatever I say it is”. People would have thought they had gone mad – they might even have called a priest to fight against the demon or devil that had taken over the mind of their lord.
Of course one would fight to the death to save the life of one’s lord – but the lord had no rightful power to “change the law”. After all that would mean a power to overthrow custom and tradition – the manifestation in the land (the spirit of the land) of the law of God, the natural law of the universe. This might manifest itself differently in different lands (depending on the customs and traditions of that land and people), but the fundemental principles of the law were divine and universal.
Of course Roman legal thinkers (like Greek Stoics and Aristotelians before them) also accepted the existance of natural law – but they held that state law trumped it.
“Feudal” thinking (when understood the concept of “the state” at all – which it did not really) held the exact opposite.
The King might give orders in battle and war (and so on) – but if his orders went against the law, they were void (at least to a man of honour). That is why “the spirit of Nurenberg” (“I was only obeying orders”) might be fine from a Roman point of view – but does not make any sense from a “feudal” one.
The lord may call upon you to fight to the death – indeed he should not have to call (you should do that without him asking). But he may not order you to rob or murder someone else – to commit an injustice.
Of course terrible injustices (mass murder, rape and so on) might still occur. But if someone said “what I did was lawful because the Prince (or council or….) told me to it” then they simply showed (even to a person with no learning at all) that they simply did not understand what the words “right” and “law” meant – and were, at best, insane.
Canon Law (church law – and it is impossible to understand “feudal” law without understanding the influence of religion upon it – whether Christian or PAGAN) held the same view – see Brian Tierney’s “The Idea of Natual Rights” (Emery University 1997).
Like Roman Law, Canon Law held that there was positive law (the commands of the Prince – of council in a Republic like Venice) and natural law.
But (like “feudal” thinking) it turned the Roman law thinking on its head.
Far from “positive” law trumping natural law – natural law trumped the “will of the ruler”.
Hence more than a thousand years of Church-State disputes (or disputes between Canon Lawyers and Roman Lawyers – in spite of them, in many ways, shareing the same tradition) they looked at things in reverse ways.
“That was just because the Church wanted to declare what natural law was – as a power grab”
Partly YES – but the Church always made a distinction between Christian practices (the rules of the Church) and the universal laws of God – that applied to nonChristians as much as to Christians (indeed even to nonChristians AGAINST Christians).
Of course some Popes and so on were corrupt scumbags guilty of every crime known to man – but some were not, and even the worst of them held that there were things they should not do (even if they did them) the idea that their WILL was law, would have been denounced as the vomit of the Devil (even by the worst Popes.
Canon lawyers (like “Feudal” ones) would have regarded the pretensions of modern Parliaments (and “human rights” courts) to change fundemental law as they see fit – as, at best, insanity and (more likely) as clear evidence that these “legislatures” and “judges” were agents of the Evil One.
And one must not think that such people were stupid or filled with silly fancies. Many of the Popes and theologians of the past were profound legal thinkers and philosophers – not every Pope spent their time chasing girls and murdering rivals (and even the oness that did often did good work also).
Still back to “Feudal” law – and a single example to come to the end of this post……
I draw from “A Summery view of the feudal law, with the differences of the Scots law from it; together with a dictionary of the select terms of the Scots and English law, by way of appendix” (John Dundas 1710).
As a general rule of thumb – the older an account of “feudal” law the better. As old accounts are more concerned with just laying the thing out – not (like Maitland and his, Blackstone influenced [no wonder the Founding Fathers of the United States despised Blackstone - with his doctrine that whatever Parliament declared was law], crew “explaining” what law “must” be i.e. whatever the state, Parliament, says it is).
Difference number 80.
“By the Feudal law no Man is forced to part with or sell his Few [fief of land] or any part of it.
By our law [i.e. law made by Parliament and so on] a vassel may be forced to give some part of it for High-ways and if his Neighbour be building a Park, or Inclosure, he may be forced to sell an adjacent corner of his Grounds to him, to perfect it”.
This is much like the so called “Edict of Quierzy” (877) which repeated the “old right” that not even a King of France could take the land of one person and give it to another (or himself).
To a Roman lawyer this makes no sense.
To a modern lawyer (such as that scumbag Maitland – and I am right to call him a “scumbag” after all he claims that no Act of Parliament “has ever been passed” that was irational or evil, so there is no need for any judge or jury to oppose an Act of Parliament as being against natural justice, a concept he scorns anyway – I could name a hundred Acts of Parliament passed before Maitland wrote that Devil-vomit lie, that were utterly evil and against basic natural justice) it makes no sense also.
As Maitland says, mocking the upholders of the “speculative dogma” of natural justice “We can (its upholders seem to say) concieve that a statute might be so irational, so wicked, that we would not want to enforce it; but as a matter of fact, we have never known such a statute made.”
Pages 107-108 “A Sketch of English Legal History” G.P. Putnam and Sons, New York and London (1915) chapter five (written by Maitland rather than his coarthor Francis Montague) on “Statute and Common Law”.
Oh you dog Maitland, you pig – may you be burning, even as I type these words, for your lies. What of the Statute of Labourers that tried to reduce all peasants (including those who had always been free – such as the people of Kent) to serfs? Much in the manner of the Emperor Diocletian. Or the Stature of Artificers under the first Elizabeth that tried to turn all people (bar the rich) into de facto slaves – forbidden to practice any other trade than that of their father, and forbidden to leave the parish of their birth? What of the “Black Act” (passed as late as the 1700s) that punished some two hundred crimes (some quite minor) with death?
What of so many other Acts of Parliament – both so irational and so wicked that no one (other than a monster) would uphold them?
However, I hope the idea of law as trying (in the circumstances of time and place) to give effect to the principles of jusice (NOT the WILL of the ruler or rulers – in the mannor of the late Roman Empire or of Thomas Hobbes and his “Legal Positivists” with their Hell vomit doctrine that whatever the “legistlature” declares is law) makes a some sense to libertarians.
As for my errors – no doubt many and terrible……
I offer the words of John Dundas.
“If this Treatise should happen to be less correct, the Reader would be pleased to give himself the trouble to mend the Errors, and excuse what is amiss, this Book being given to be printed by a certain person when the Author was our of Town, and knew nothing of the publishing of it, not having designed so soon to send it abroad into the world.”