Sources of Law, 5: Early Medieval Custom

The final source of modern Western law described on this website 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). This kind of law is more difficult to describe than the other sources of law reviewed on previous pages (the Bible, Cicero’s Philosophy, Roman Law, and Canon Law), because by its very nature custom varied from one place to another and over time.

Customary vs. Learned or Professional Law: Post-Roman customary law was in fact never purely oral or customary in character; instead it was continuously influenced by and actively borrowed from the ‘learned’ legal traditions of both Roman and Canon Law. Conversely, even after ca. 1200, when regional bodies of customary law began to be written down and subjected to formal, academic study, western law remained heavily based on custom–in fact this is still true today. But the pre-1200 period may be distinguished as one in which the customary element was preponderant in mostly non-professional, community-based law. In contrast, after about 1200 the formal or ‘learned’ character of law steadily increased as lawyers and other legal professionals came to dominate the practice of law. The formal system of most relevance to Anglo-American law that developed out of early medieval custom from about this time in England is known as Common Law.

Common Features: While early medieval customary law varied quite a bit from place to place, there were also some similarities across regions. Such common features may have derived from both the influence of the bodies of learned law noted above and from social practices and norms that were widely shared among the Germanic tribes that conquered most of western Europe in the immediate post-Roman centuries. Here we may focus just on a few of the most famous (and most debated!) of these common features, because they had the most influence on later medieval and modern Western law, namely feudalism, manorialism, and traditional kingship. All of these practices made sense within a social world shaped by power arrangements that were primarily informal.

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 absence or 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. This applied even to powerful people like nobles (or ‘lords’) and kings, whose power ultimately depended less on their titles than on their ability to maintain the support of their peers and the cooperation of their immediate subordinates. These social relations were, therefore, 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 within a divinely-ordained hierarchy.

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.

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)

The excerpts below from King Henry I of England’s coronation charter of 1100 reflect some key aspects of traditional kingship. What limits on royal power are acknowledged or implied? To what extent did the king’s men or others have property rights? To what extent did women have property rights, or any rights? It is also important to note that this coronation charter was later used as one of the key models for the Magna Carta of 1215. Even though Henry I, once he consolidated his power, rarely felt limited by the promises listed below, this kind of general promise to rule fairly and justly was clearly part of a long tradition that upheld the ideal of kings ruling under the law.

“Henry, King of the English, to Bishop N. and M. sheriff and all his barons and sworn men French and English of [any] Shire [i.e., County], greetings.

[1] “Know that, by the mercy of God and the common counsel of the barons of the realm of England, I have been crowned king of this realm. And because the realm has been burdened with unjust exactions, I, out of respect for God and the love I have towards you all, in the first place cause God’s church to be free, on such terms that I shall neither sell nor lease it at farm [i.e., for a fee], and when an archbishop or bishop or abbot has died I shall receive nothing from the demesne [property] of the church or from its men until a successor enters into it. And all the bad customs by which the realm of England was unjustly burdened I take away from it, which bad customs I here record in part.

[2] “If any of my barons [high-ranking lords], whether earls or others who hold [fiefs] from me, dies, his heir shall not redeem his land as he used to do in my brother’s time [William II, 1088-1100], but shall relieve it with a lawful and just relief [an inheritance tax]. Likewise also the men of my barons shall relieve their lands from their lords with a lawful and just relief.

[3] “And if one of my barons or my other men wishes to give his daughter in marriage, or his sister or his niece or his cousin, he shall speak with me on the matter. But I shall not take anything from him for this permission, nor shall I forbid him to give her, unless he wished to marry her to my enemy. And if, when my baron or another man has died and his daughter inherits, I shall give her [in marriage] and her land only with the counsel of my barons. And if, when a husband has died, his wife remarries but has no more children [with her new husband], then she shall have her dower and marriage gift, and I shall not give her to a husband except in accordance with her wish.

[4] “But any widow who has children shall have her dower and marriage gift for as long as she remains chaste, and I shall not give her [in marriage] except in accordance with her wish. And the custodian of the land and the children shall be either the wife or another relative who ought more justly to be custodian. And I command that my barons likewise shall restrain themselves towards the sons and daughters or wives of their men. …

[13] “The law of King Edward [who died in 1066] I restore to you together with the improvements by which my father [William I the Conqueror] improved it by the counsel of his barons. …

“Witnessed by: Maurice bishop of London and William bishop elect of Winchester and Gerard bishop of Hereford and Earl Henry and Earl Simon and Walter Giffard and Robert de Montfort and Roger Bigod and Eudo Dapifer and Robert fitz Haimo and Robert Malet. At Westminster when I was crowned. Farewell.”