The Law Of Fiefs And Corporations

Writers on “feudalism” seem to consider it characteristic or even diagnostic that there exist two separate legal systems, the public law and “feudal law”. The one is said to be the rather battered remnant of the previously omnicompetent public law, administered by the state power whose enfeeblement or disintegration has produced this thing called “feudalism,” while the other is the “law of fiefs” governing elite landholding and the terms of military service. If this is supposed to be a big deal, one may wonder what experience such historians have of the real world around them, for modern societies also have a distinction between public and private law. Very roughly, the former deals with the relationship between individuals and groups on the one hand and the State on the other, the latter with the relationships among individuals and groups. This includes the law of contract, which is of great interest to business enterprises. That “the law of fiefs” was complex, arcane and provided employment for armies of lawyers only goes to underline its functional identity with modern civil law governing economic dealings between corporations. That its remit did not extend all the way down the social scale, but operated only between magnates, is again not radically different from the situation in our own day, where the intricacies of corporate structures and governance is of little concern to the ordinary man. In both cases he knows what will happen to him if he attempts to meddle in the affairs of his betters. That “the law of fiefs” was administered by separate courts staffed by the economic players themselves, rather than by public judges, may at first sight seem different from our own arrangements, but only until one contemplates the arbitration tribunals that quietly do much of the work when corporations quarrel with one another.

So, then, the existence and nature of the two legal systems is not a peculiarity of some strange historical creature called “feudalism,” but rather something common to that society and our own, possibly even to all societies. What the unbusinesslike historians actually mean when talking about the rise of feudal law at the expense of public law is that the former encroaches on the domain of the latter, in that matters once handled by public law are now handed by the rules and procedures of private law. That is, what was once authority becomes a contractual relationship and what was once a state directive becomes a process for breach of contract. Or rather, the public power used both systems in parallel, now requiring that things be done under public law, and now requiring that they be done in accordance with the contract it had entered into with the economic players. Neither is this in any way dissimilar to the way we are organising our affairs under New Public Management, where government sources are outsourced to the lowest bidder, subject to contractual requirements of service. Perhaps we are ripe for a new Magna Carta, whereby corporations accused of inadequate performance of public services will be judged only by other corporations, which will understand.

Posted on April 17, 2010 at 11:04 by Hugo Grinebiter · Permalink
In: GETTING MEDIEVAL, Economic Universals In Funny French

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