The Source
Susan Reynolds, Fiefs and Vassals: The Medieval Evidence Reinterpreted, Oxford UniversityPress 1994
Chapter 1: The Problem of Feudalism
The historiography of feudalism
… The eighteenth-century idea of the middle ages as the time of 'feudal government', 'feudal society', or the 'feudal system' was derived from discussions of the previous two centuries about 'feudal law'. From the early sixteenth century humanist scholarship in France was concerned with law, notably with the history of Roman law and its authority in France, and thus with the origin and authority of the feudal law or law of fiefs that had been studied in medieval universities along with Roman law.
This academic law about fiefs needs to be distinguished from the customary law of the middle ages that historians often call feudal law. It was based on a composite treatise, the Libri Feudorum, which had been compiled in Lombardy in the twelfth and early thirteenth centuries and remains one of the … neglected texts of the middle ages. It became attached to the books of Roman law in the thirteenth century and accumulated glosses and commentaries by many of the same academic lawyers who glossed and commented on the [Roman] Corpus Juris Civilis.
The resultant academic law of fiefs was concerned only with the law about properties called fiefs, whose holders it called vassals. Its connection with the law actually practised in the courts of the supposedly feudal kingdoms of medieval Europe was for the most part rather tenuous and indirect. The university-trained lawyers who, except in England, dominated higher courts from the fourteenth century on, occasionally introduced the terminology of fiefs and vassals that they remembered from their university days into some legal documents. Occasionally they used words and phrases from the literature of the law of fiefs along with those from Roman law to make their arguments look better. The substance of property law and the procedures of the courts in northern Europe were, however, not very seriously affected by the academic law of fiefs.
In one respect court procedure and academic law became more divided from each other just at the same time as knowledge of the academic law was spreading: while writers on the law of fiefs continued to discuss procedures using the judgement of peers (judicium parium), the dominance of professional lawyers and judges in the courts of late medieval Europe eliminated the collective judgement that had earlier been traditional and with which judgement by one's equals had originally been connected. …
… The concepts of vassalage and of the fief … as they have been developed since the sixteenth century, originated in the work of the sixteenth-century scholars rather than in the late medieval texts they studied. The texts talked about fiefs but they contained very little that amounted to anything like a concept of the fief as a category of property that could be distinguished from other sorts of property, let alone be seen as an organizing principle of government or society. Their authors were discussing the law of fiefs, not property in general or the structure and bonds of society.
They sometimes explained the obligations of vassals—that is, fiefholders, the only people they were interested in—in terms of gratitude to their lords or of the noble obligation to military service, but these brief moralizing rationalizations served a far more significant purpose in the works of sixteenth-century and later historians than they did in those of the medieval lawyers. The idea of vassals as noble warriors who brought the ethos and solidarity of the warrior band into the structures of medieval government, who owed fidelity in return for the fiefs they were granted, and whose relation with their lords was contractual in a way that that of non-fiefholders was not—the whole idea, in short, of vassalage both as fiefholding and as the cement of medieval society—could be read between the lines of the texts of the law of fiefs, but only between the lines. It was the sixteenth- and seventeenth-century scholars who found it there. …
… The law of fiefs, as interpreted and used by the French scholars, could be used in other countries, as it had been in France, to organize the past and provide arguments for the present so that ideas about it gradually spread to a wider public. When what modern historians call 'feudal tenures' were abolished in England in 1660 the word 'feodall' was used only in an annexe to the act of parliament and only about titles to peerages. …
By the eighteenth century increasingly close and learned study of historical sources, combined with an increasing taste for abstraction and an increasing sense of the strangeness of the past, evoked a need to characterize and analyse medieval phenomena in general that found striking expression in the thirty-first book of Montesquieu's L'Esprit des Lois. The way that so much historical study had started from the Libri Feudorum made it natural that historians should now characterize the whole of the middle ages as feudal. Feudal government and feudal society were the obvious counterparts of feudal law.
Consequently, when Adam Smith and others in the Scottish Enlightenment developed the idea of different stages of history marked by differences in political economy, the agricultural stage (after the hunting and pastoral stages and before the commercial) was represented primarily by the middle ages, the age of feudal government.
In Smith's description of feudal government the framework of the sixteenth-century discussions is still clearly visible. Feudal government had succeeded the alodial government of the barbarians when military beneficia became “altogether hereditary, in which state they were called feuda”. For Smith, feudal government in Britain had, it seems, already been effectively superseded, largely by the introduction of arts, commerce, and luxury. …
… The French Revolution brought the package view of feudalism as a past stage of history to a wider public and accentuated the tendency to attribute to the middle ages whatever seemed most irrational and oppressive about the Ancien Regime, like the classification of society into distinct orders with a defined and legally privileged nobility. Ideas of progress suggested that such deplorable arrangements must have been archaic survivals. The package view of the middle ages as feudal and of feudalism as oppressive then got a new lease of life when Marx took it over, along with a newer version of the four-stage theory. He put new driving forces behind the beginning and end of what was now called simply feudalism, and concentrated on aspects of the middle ages that narrower or more romantic views had ignored or played down, but his knowledge of medieval history, despite wide reading, was still conditioned by the framework within which all scholars had seen it since the sixteenth century.
The point of this rapid survey of the progress from sixteenth-century expositions of the law of fiefs to full-blown feudalism is to show how, while the idea of what was feudal expanded as the knowledge and interests of historians expanded, the fundamental concepts and the framework in which they were set remained virtually unaltered. …
… For many historians who apparently think of feudalism in a feudo-vassalic … sense, monarchies can still count as feudal however much authority kings exercised over those of their subjects who were not their vassals, provided only that they exercised some over people who look like vassals according to some definition or other— and provided that the kings lived at the time which has already been labelled as the age of feudal monarchies. …
… The word fief is the normal translation of feodum, feudum, fevum, et cetera. These words were used in a variety of contexts and senses in the middle ages, so that they relate to rather different phenomena and presumably reflected a variety of concepts or notions in the minds of those who used them. The concept of the fief, as I have argued and as I hope will appear from my analysis of the medieval evidence, is essentially post-medieval: it is a set of ideas or notions about the essential attributes of pieces of property that historians have defined as fiefs, some of which may not appear in the sources under any of the words that we translate as fief. …
… How far the ideas or notions about property that are involved in our concept of the fief correspond to any of the notions held by medieval people in any of several centuries, countries, and contexts when they used either that word or any other word is a subject that needs investigation. Lastly, after word and concept, there is the phenomenon of dependent noble or military tenure, with its varying conditions. Much of the discussion of fiefs, as of vassalage, seems to me to assume the identity of words with concepts, our concepts with medieval concepts, and all three with the phenomena. That is particularly dangerous with something like the medieval historian's concept of the fief, which embraces a whole lot of other concepts, similarly conflated with particular words, such as investiture, homage, or oaths of fidelity. How far each of these words had consistent meanings and how closely the phenomena they represent were connected with fiefholding is another problem which cannot be solved by imposing modern definitions of ‘the concept of the fief’ on the medieval evidence. …
Chapter 2: Vassalage and Norms of Medieval Social Relations
The concept of vassalage
… Historians use the words vassalage, vassalite, Vasallität, vassallaggio, et cetera to denote the relation between a lord and his free or noble follower—his vassal. Because the vassal was a free man they see the relation, although unequal, as having had a voluntary and reciprocal quality that distinguished it significantly from that of a lord with his [unfree] peasant tenants or subjects. … The loyalties and obligations of vassalage are held to have been derived from those of the barbarian war-band, but these are obscure …
… It is generally agreed that by the end of the eighth century the vassi or vassalli of both the Frankish kings and other great men in their kingdom were free men who had entered into vassalage by a ritual known as commendation and by taking an oath of fidelity. Commendation and oath bound them to the service of their lords for life and they could normally leave only if the lord committed certain crimes against them. In return for the vassal's service the lord offered protection and some form or degree of maintenance, either by making the man a member of his household or by providing some kind of wage, whether in kind, in money, or in land.
Whatever the status of vassals or their predecessors before the eighth century, their status was by then rising. One reason for this was that the Carolingians bound counts, bishops, and other great men more closely to themselves by commendation so that they too became vassals. Vassalage thus became, in Ganshof's words, 'a coveted status, a mark of honour, at any rate where direct vassalage to the king was concerned and where the vassal obtained a benefice in return'. Ganshof's reference to a benefice introduces the other reason for the rise in status of vassals. Not only the king but all lords with vassals were beginning to provide the maintenance that they owed to their vassals in the form of a landholding which became known as a benefice or fief.
This marked a crucial stage in the creation of 'classic feudalism'. Scholarly opinion is divided on the date when vassals in general became fiefholders. Ganshof, for instance, thought that the 'union of benefice and vassalage' became general under the Carolingians, while [others] argued … it did not happen until the eleventh century.
Benefices or fiefs were at first granted for life only, but later gained increasingly secure rights of inheritance. The new prosperity and independence that this brought to the humbler vassals confirmed their noble status and marked the beginning of what is often called the 'rise of the knights' and the growth of the ethos of chivalry. The conditions of fiefholding … are generally considered to have been shaped by the already established rights and obligations of vassalage. In the words of [some authors] vassalage was the driving force (der treibende Faktor) in the history of feudalism.
Because vassalage was, at least in theory, a freely contracted relation, and because the period when it emerged was one of formalism and ritual, every man who became a vassal is assumed to have undergone the ritual of commendation, later alternatively known as homage (hommage, Mannschaft, omaggio).
Bloch described how the prospective vassal commended himself or did homage. Sometimes but not invariably kneeling, he put his hands between the lord's hands and declared himself the 'man' of his lord. They then kissed,
“symbolizing accord and friendship. Such were the gestures— very simple ones, eminently fitted to make an impression on minds so sensitive to visible things—which served to cement one of the strongest social bonds known in the feudal era.” [Bloch, Feudal Society]
Immediately after doing homage the vassal took an oath of fealty or fidelity. At first that was slightly less important, since similar oaths might be taken by subordinates who were not vassals, while an oath, as distinct from the rite of commendation, could be repeated and did not need any direct personal contact. For … homage without the physical contact of the lord's and vassal's hands would have been meaningless, while it was the ritual of homage or commendation that marked off vassalage from other, less close relations of subordination in the Carolingian age.
Later, however, after the rituals of vassalage had become established while Carolingian royal power had declined so that subjects in general ceased to take oaths of fidelity, homage and oath came to seem part of a single, indivisible rite almost everywhere. One notable exception was north Italy, where commendation is rarely mentioned after the tenth century and the rite of homage seems to have been unknown or insignificant in the twelfth and thirteenth.
The rite of commendation bound the lord to protect and maintain his vassal. Once vassals became tenants, the rights that went with the lord's duty gave him some control over the inheritance of the fief and protection or control of the tenant's widow and any minor heirs. These duties or rights, like the fiefholder's corresponding obligations, derived from the original relation of vassalage, which also explains why each heir had to renew homage on his succession and sometimes also on the succession of the lord.
Even when the link between lord and vassal ceased to be merely personal and was 'territorialized' by the grant of fiefs, an element of personal commitment survived. The fiefholder's duties could at their simplest be expressed as honourable service, but they are often summarized as aid and counsel (auxilium et consilium), the aid being primarily military and the counsel being performed through attendance at the lord's court. Another way of summarizing the obligations of the vassal is to say that he was to be faithful: he owed fidelity or fealty. …
… Subjects who were not vassals were also required to be faithful and they too might be described in the Carolingian age as fideles but, as the bond of vassalage eclipsed other ties, the word fidelis, like the word 'man' (homo), became a synonym, or almost a synonym, for vassal. Fidelity—the bond of mutual fidelity between an individual lord and his individual follower—has been seen as the distinctive value of the feudal ethic …
… If the fidelis were to deserve the grant of a holding or fief (casamentuni) he would have to go beyond these negative duties and faithfully give his lord aid and counsel. The lord in return should act in a corresponding way to his fidelis, lest he be censured for bad faith and perfidy. The author of the twelfth-century English lawbook known as Glanvill maintained that the bond of fidelity deriving from lordship and homage (dominii et homagii fidelitatis connexio) ought to be mutual, so that the lord owes as much to the man as the man to the lord, saving only reverence.
What made vassalage so important was that the time when it arose was one when, it is thought, there was no idea of the state and very little idea of impersonal, public obligations at all, and when kinship ties may have been becoming weaker. It was
“a state of society in which the main social bond [was] the relation between lord and man.” [Maitland, Constitutional History]
Germanic barbarians did not have the Roman sense of respublica. Their loyalties were personal. Merovingian kings treated their kingdom as their own private property and, though the church kept alive some ideas of abstract good, people were only just beginning to think in terms of a 'transpersonal' state in the eleventh century.
It was only with the twelfth-century Renaissance that ideas of the public good and public interest began to develop significantly. Even in the great days of the Carolingian empire it was the personal bond, rather than high ideas of Christian empire, that worked: it was commendation that really bound counts to the king or emperor, while the oaths of fidelity that subjects at large had to take gained their force by seeming to create a personal bond with him. But the king was too distant for the bond to hold.
Inevitably, in the circumstances of the time, vassalage worked much more to the advantage of counts and other local lords: they could offer more effective protection to their vassals and their relations with them could be genuinely personal.
As this suggests, while kings could make use of vassalage, they did so, not primarily as rulers of a kingdom or state, but as lords like any other lord. Vassalage was essentially a personal relation—what a modern sociologist might call an interpersonal, affective, dyadic relation. The element of affect is important. Men—vassals—were supposed to die for their lords. …
… [The] union between lord and vassal could even, exceptionally, be expected to prevail over that between man and wife. But the bond between lord and vassal did not supersede or undermine all other relations. Joint vassalage maintained the solidarity of the war-band among the vassals—a solidarity that is most famously exemplified in the Song of Roland, in which, incidentally … Roland’s betrothed plays a very minor part. Solidarity and sense of parity between vassals led to the 'judgement of peers' by which free and noble vassals gave counsel in their lord's court and joined in its judgements.
In practice, of course, obligations were not always fulfilled and the bond did not always hold. In the ninth and tenth centuries, partly because of the desire for benefices and partly because political troubles brought conflicts of loyalty, men began to commend themselves to more than one lord. Later, to cope with the problems of 'multiple vassalage', liege homage was introduced by which each vassal was supposed to have only one liege lord to whom he owed a single, primary loyalty and whose service took precedence over the others. In the mean time, during Bloch's 'first feudal age' before the late eleventh century, the competing claims of lords against each other and the conflicts between lords and vassals brought much disorder.
That the values and norms of vassalage nevertheless retained a hold over people's minds, even when they were so often being betrayed and broken, is shown by the rules that emerged for ending the relation. Either side could end it legally if he had been betrayed by the other. By the twelfth century we know about a ritual for doing this [Bloch]. By that time, however, as the 'second feudal age' developed, as abstract ideas of political obligation began to grow, and as something like states began to appear, the personal bond of vassalage was becoming less exclusively important.
Hereditary rights in fiefs meanwhile undermined its personal and affective nature. The relation between lord and man was turning into a matter of property rights to be adjudicated, if necessary, in the increasingly formal courts of law that characterized the period. Nevertheless most kings and princes had significantly restricted authority over their vassals’ vassals and little direct contact with them. Kings were still overlords or suzerains rather than sovereign rulers in the modern sense. Many of the traditional values of vassalage survived. The relation with their immediate lords was what counted with many vassals, so that a vassal was likely to side with his immediate lord against the king or an intermediate overlord if they came into conflict with each other. In the words of the thirteenth-century French jurist,John de Blanot, ‘the man of my man is not my man’. …
… … If it is true that medieval society was bound together by a mass of individual and explicit contracts between superiors and inferiors, rather than by the more common implied and collective contracts, then that would certainly make it distinctive, but to conclude that it was we would need to establish the prevalence of individual contracts and the absence of collective bonds. That has not yet been done. The suggestion, for instance, that all, or even most, of those who owed commendisia, commenda, commando,, et cetera in twelfth- and thirteenth-century France, or their ancestors, had, ‘at least in principle', made some sort of individual submission or request for protection, is based on a priori ideas about the individual contractual basis of feudal ties in general and 'commendation' in particular.
If people under commendise sometimes complained that their lord was not protecting them in return for the dues that he received from them, that need not imply that their relation was modelled on the feudo-vassalic contract. It may show nothing more than a sense of the duties of government that is so common in traditional societies.
One could, of course, argue that, while free peasants could have been put under commendisia without their consent, noble vassals would have expected to give it. But that only takes one back to the problem of drawing a line between those whom one considers to have been nobles and vassals and those that one does not: some of the people who are recorded as doing homage and taking oaths of fidelity before about 1200 look very unlike noble vassals.
It may be that most people whom we choose to call vassals before the thirteenth century had gone through a rite like what we call homage, made some sort of individual profession of faith to someone, or were otherwise bound by contract more than were the freer kinds of peasants, but the evidence for it is much weaker than traditional ideas about fiefs and vassals suggest.
The degree of freedom in any individual contract in a stratified society is presumably affected by the social distance between the parties: in the middle ages nobles and free men must generally have made terms with their lords more freely than did peasants, but the terms must have varied a lot. Even great men did not always have much choice about doing homage to the king if they wanted to keep their position and property in his king- dom. Defending themselves against accusations of treason by saying they had never done homage or sworn fidelity did not generally get them very far. We not only have little evidence of the rites and contracts made between kings or lords and the mass of their subordinates before the twelfth or thirteenth centuries: we have no real evidence that people at the time thought of society as bound together, or supposed to be bound together, primarily by individual contracts of the kind presupposed by modern ideas of medieval feudalism.
Fidelity, the supposed counterpart and consequence of the vassalic bond, is as hard to make specific to feudo-vassalic relations as is the idea of individual contracts. All stratified societies demand some kind of loyalty and obedience from subordinates just as they demand or hope that rulers will obey the rules and keep faith with their subjects. Although medieval lawyers liked to derive the word feudum from fidelitas, the idea of fidelity does not look very specific to feudo-vassalic relations … It was not only vassals who were supposed to be loyal and obedient—that is, to be fideles. Different kinds of loyalty, service, and obedience were, of course, demanded from different kinds of people. …
.. The biggest problem of all about the concept of vassalage, as about its ceremonies, is that it is such a composite construct. It seems to have been devised first from the study of the Libri Feudorum and the later academic commentaries on it, in which vassals are simply fiefholders. Study of Carolingian records, especially the capitularies or records of legislation, then confirmed the belief that the Libri reflected older arrangements, and that vassals, like fiefs, had originated in the early middle ages.
A good deal of the idea of the values and norms of vassalage that has since been worked out comes in fact from the records of legislation recorded in Carolingian capitularies. Ganshof, for instance, like earlier scholars, often seems to treat the capitularies as embodying norms that were generally accepted at the time. But the legislation in the capitularies often dealt with particular political circumstances and the references to vassi there were often, though not always, to royal vassi. There is sometimes no reason to assume that similar rules applied to the vassi of other lords or that what was forbidden in particular royal laws was generally considered wrong. It cannot be right to construct a general picture of something we call vassalage by bringing together all the rules of Carolingian legislation about vassi with the rules stated or implied by later academic lawyers, for whom vassals were simply the holders of a particular sort of property, and with observations on the behaviour of people in the intervening period whom historians choose to call vassals.
How the change of political and social conditions in tenth- and eleventh-century France affected norms and values it is very hard to say, but imposing composite ideas of vassalage on the period—let alone on the same period in other countries where conditions were different—is not the way to find out. One cannot put together remarks about allegedly arbitrary behaviour of lords in the early eleventh century with the apparently greater rights enjoyed by people we call vassals a hundred years later so as to deduce either that rules were becoming stricter or that generally accepted ideas were changing. Nor is it right either to castigate or to excuse early eleventh-century counts whom the historian considers to have been vassals of the king for not fulfilling the obligations that historians have since attached to vassalage.
It would be foolish to deny that components of the modern construct of vassalage and the values attached to it existed in the early middle ages: mutual loyalties between lords and their followers were clearly important, and in a good many cases the property of the subordinates was subject to controls or obligations to the lord. But we need to look more closely at the relations between superiors and inferiors in the context of other relations and values, both interpersonal and collective. …
… The concept of vassalage, I suggest, conceals at least half a dozen different types of relation that need to be distinguished. They are those of ruler and subject, patron and client, landlord and tenant, employer and employed, general (or lesser commander) and soldier, and something like a local boss or bully and his victim.
Distinctions between those who serve for wages, or for their keep, or just in hope of favours to come, also need to be made among those who might be considered either clients or employees. …
Chapter 10: Conclusion
… Between the fall of the Roman empire and the development of what was seen as civilized modern government, Europe had, it was thought, relapsed into a state of barbarism in which ideas of public welfare, public spirit, and rational law were kept alive only by the church. In this reversion to the primitive the only values that laymen could appreciate were those of kinship and personal loyalty.
As I argued [above] this picture of 'primitive society' is incompatible with modern knowledge, while some of the evidence in subsequent chapters has, I hope, suggested that early medieval society was held together by more than interpersonal bonds. I have not thought it necessary to argue that the picture of the whole middle ages as dominated by unruly barons and knights who made war on each other and tyrannized over hapless peasants from their castles is inadequate, because no medieval historians now see the period in that way. It is not just that the number of castles is in many areas a poor guide to the number of totally or even largely independent lordships, let alone to the number of sieges and battles fought around them. People who were called knights and barons were brought up to admire the military values of courage and loyalty or at least to pay lip-service to them, but a fair number never marched (or rode) in armies and even fewer fought in battles. Talk of unruly barons or knights and hapless peasants, moreover, implies a dividing line that … is very hard to draw, particularly in the earlier middle ages.
Almost all, if not all, medieval societies were extremely unequal and authoritarian, but they were divided by many gradations rather than by a single gulf between nobles and peasants. Like other stratified, authoritarian, agricultural societies they were held together partly by coercion but partly also by values and norms that, so far as we can see, were probably quite widely shared. The study of different societies that has gone on since the model of feudalism was invented suggests that many societies do, by and large, hold together, and not merely because of either interpersonal relations or fierce government from the top. Analogies prove nothing but they are suggestive.
… I suggested some of the values and norms that held the societies of medieval western Europe together. Members of the ruling classes of unequal societies may find more and different reasons for rivalries and disputes than those they rule, and may be subject to fewer countervailing sanctions, but they are also the most likely to subscribe to the society's publicly pronounced values.
Medieval values laid great stress on authority and especially on the authority of kings. Kingdoms were seen as communities and so were lesser lordships within them. Within each community responsibility lay on those who were often referred to as its better and wiser members—that is, the richer and more established. What held noble society together therefore, so far as it was held together, was the same values that held the rest of society together, reinforced by the need of solidarity against inferiors and outsiders. Interpersonal relations were not the whole story nor even most of the story. …
… The fiefs of the twelfth century and later, from which sixteenth- and seventeenth-century ideas of feudal law were derived, formed a fundamentally different category of property from either the kind of holdings that had earlier been called fiefs or the earlier properties of nobles, which had not generally been called fiefs. The nearest precedents that I have been able to find from before the twelfth century for most of the rules about the rights and obligations of fiefs as we know them from later records are practices that great churches adopted for dealing with their property.
This may be partly because so much of our information about the earlier period has to come from records that churches preserved, but we should at least consider the implications of using the relations of bishops or abbots with their tenants as evidence of those between kings and lay nobles or between the nobles and their own followers.
In any case, as I hope I have shown, enough evidence about the relations between kings or lay lords and their followers survives to show that they were quite different from what is implied in traditional accounts of the evolution of feudo-vassalic institutions. Nobles and free men did not generally owe military service before the twelfth century because of the grant of anything like fiefs to them or their ancestors. They normally held their land with as full, permanent, and independent rights as their society knew, and they owed whatever service they owed, not because they were vassals of a lord, but because they were subjects of a ruler. They owed it as property-owners, normally in rough proportion to their status and wealth.
Inheritance dues (reliefs, rachats, etc.) seem to have originated, not as signs of the originally temporary nature of grants made by lords to their vassals, but in the dues taken by churches from their peasant tenants. The earliest evidence of 'feudal aids', on the other hand, comes from lay estates, but is no earlier than the late eleventh century. These aids were first taken, it seems, by lords in west France from people who held land within their lordships without any indication of a feudo-vassalic relationship. Aid and counsel (auxilium et consilium) was a neat phrase that at first had no feudo-vassalic connotations but was adopted when written records multiplied and standard phrases became useful.
When fiefs are mentioned in the thirteenth century and later they cover a much wider category of property than earlier (except in England, where the word had from the twelfth century been used even more widely). The category was enlarged not merely because individual alods [land ownership by occupancy] had been surrendered and turned into fiefs, but because the word fief was now applied to much noble property without any formal surrender and conversion. Property in the thirteenth century and later was subject to dues and services, and sometimes to general taxes, that depended on records kept by literate, numerate, more or less professional administrators, and it was classified and argued about by a new kind of lawyers employing a new kind of expertise.
The records were not always accurate and the arguments deployed about rights and obligations by both sides were sometimes tendentious, but the flaws were those of systems different from any generally used before about 1100. They were systems that begin to have at least some of the characteristics that Max Weber associated with bureaucracy, little as he may have associated bureaucracy with the middle ages.
Whatever the regional variations in its timing and in the systems that resulted, the change from the immanent, variable, and flexible customary law of the earlier middle ages to the more esoteric, rigid, and expert law of the later was one of profound significance that profoundly affected the rights and obligations of property.
It was not just that, as is sometimes said, feudal obligations and feudal law became more precise in the twelfth century. The new law was a different kind of law and so relationships and institutions within it were fundamentally altered. Carolingian government had relied on literate servants, and English government in the century before the Norman Conquest had already become, by the standards of the time, remarkably bureaucratic, but the law that each administered was not professional law. It cannot make sense to envisage the Carolingian benefice and the thirteenth- or fourteenth-century fief as embodying the same legal institution—not because the names were different but because they existed within different legal systems.
A good many references to fiefs in the later middle ages often reflect lawyer's law rather than the norms and values of lay society at large, but in so far as they reflect wider values it seems reasonable to start from the assumption that what they reflected were the values of the time. Because social norms still stressed the validity of custom as well as the duties of obedience, both rulers and subjects, like lawyers, tended to claim the sanction of ancient custom and to moralize about the duties of loyal and grateful subjects. That does not mean that the obligations of property-holders which were then justified or contested were in reality archaic survivals.
[Therefore] in so far as anything like feudo-vassalic institutions existed, they were the product not of weak and unbureaucratic government in the early middle ages but of the increasingly bureaucratic government and expert law that began to develop from about the twelfth century.
Given the evidence of early bureaucracy in England and of the development of a legal profession soon after, it may be thought that I am applying to other countries a model constructed from English evidence. I hope that I am not applying it as a model in the sense of forcing the evidence for other countries into it: I do not suggest that either bureaucratic or legal developments in other kingdoms were the same as those of England. On the other hand, one of the uses of comparisons is to take ideas or insights from one area of enquiry to others. The English evidence may have been useful in drawing attention to possible implications of the evidence of record-keeping and new sorts of legal argument in other countries.
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