- Medieval Europe and Feudalism
The Medieval Period lasted from the 5th to the 15th century. It is important to highlight that, during such period of time, the European society as a whole underwent several changes. This time lapse is usually split up into three very distinct eras: Early, High and Late Middle Ages.
The first one comprehends the extent of time between the 5th and 10th century and is commonly acknowledged by the vassal and lord relationships1 that interwove its last two centuries. Forasmuch as the decentralization of previous monarchies, the lands antecedently annexed by these governments were rendered in fiefs, each then ruled by a specifically selected overlord, who was responsible for administrating his respective jurisdiction. The tillage system and the barely nonexistent trade of goods as well as other commercial agreements forced the aforementioned way of structuring society into subsistence and self-sufficiency. Nonetheless, the frequent wars also contributed to keeping the contingent of inhabitants at low levels and settle in secure, closed and fortified structures.
From the 11th century onward, during the High Middle Ages, a comparative outbreak of new commercial routes and trades, technological advances in the horticulture field and the declining number of armed conflicts enabled a rapid population growth. Such enlargement, however, speedily turned into a populace surplus since cultivation, even though more advanced and efficient, still was not enough to tend to people’s needs. That situation opened way to the establishment of guilds, which were responsible for a further change in medieval society.
During the Late Middle Ages, those agglomerations of people, which lacked basic sanitary structure, and the arrival of merchants from all over the world led to the emergence and spread of various diseases. Such citadels and the hunger caused by insufficient farming occasioned the perishing of one third of the European population at the time. However, the freshly restructured society made way for new types of political and social interrelations and marked the commencement of the transition process between feudalism and the Modern Age.
It is important to note that feudalism did not develop equally in every region of Europe. For example, in France it reached strong expressivity while in Portugal its establishment was timid and uneven. Therefore, feudal Law and history are not uniform phenomena, however present several convergences that allow a generalizing perspective.
- Medieval Law
In medieval Europe, Law was presented in two major forms: oral, from Barbarian traditions, and written, concerning compilations inherited from the Romans.
Taking into consideration the facts that legal documents were penned in Latin, a language typical of ecclesiastics, and the majority of denizens were unable to read, the manuscripts were inaccessible to nearly all social stratums at the time. Thereupon, costumes took the role of ruling social interactions, what progressively shrunk the influence exerted by written law. The ordinance in most regions happened orally, what opened way to the rising and perpetuation of a consuetudinary Law2. (BLOCH, 1979)
However, such situation did not cause the total disappearance of written Law, only its approximation to a clerical context. As aforesaid, the scripts were inscribed by members of the Catholic Church, what enabled their usage to enforce personal interests of the institution, whether dogmatic or financial. Thus, a compilation of rules characteristic of a canonical Law was created.
Considering the fragmentation and consequent political isolation of the system, each fief developed its own characteristic traditions and costumes, what caused the nonexistence of unified judicial processes throughout Europe as a whole. Each territory corresponded to a separate and independent legislative unit; therefore, each one’s Law and applicability were limited to its own inhabitants.
On the other hand, during the Late Middle Ages, a revival of the lettered law tradition could be observed, what engendered a complete reformulation in European Law. With the change in social relationships, the judicial application of costumes also went through refinements. There was a simplification process whilst people were no longer judged by their ethnic ascendence in order to follow a common law in a bigger territory.
Roughly, the medieval Law was characterized mainly by pluralism, “a superposition of juridical ordainments inside a single society, each linked to a determined social organization”. (COSTA, 2001) Thereby, despite of the existence of a canonical law, written and coterminous, the various fiefs conserved their own secular costumes, which ruled their respective social interactions. With the decline of isolation, the different traditions were condensed in juridical compilations that, posteriorly, opened way for a greater codification of norms and a new moment in the history of Law.
- The vassal and lord relationships were based on loyalty agreements. The suzerain sectioned the acreage under his commandment in order to delegate its administration to others, denominated vassals. These, on the other hand, owed their respective lords fidelity, backing in armored conflicts and a share of their harvesting. The beneficiaries then ended up repeating the fragmentation process, becoming suzerains themselves to other vassals and assuming the duty of protecting their subordinates.
- According to Olivier Devaux (Histoire des Instituitions de la France, p. 187-188), consuetudinary or costumary law can be summarized as “a non-written judicial practice […], consecrated by habit, acquiring compulsory strength over members of the concerned group”.
- References
BLOCH, Marc. Os Fundamentos do Direito. In. BLOCH, Marc. A sociedade feudal. Lisboa: Edições 70, 1979. p 133-144.
LE GOFF, Jacques. La baja edad media. 17. ed. México: Siglo Veintiuno, 1986. 336 p.
RESENDE, Ana Catarina Zema de. Da justica e dos direitos senhoriais na obra de philippe de beaumanoir: Coutumes de beauvaisis. Brasilia, 1997. 124 f
DAVIS, Kathleen. Sovereign Subjects, Feudal Law, and the Writing of History. Journal of Medieval and Early Modern Studies. Durham, v. 36, n. 2, p. 223-262, 2006.
DELANEY, David. Running with the land: legal-historical imagination and the spaces of modernity. Journal of Historical Geography. Nova Iorque, v. 27, n. 4, p. 493-506, 2001.
MATTOSO, José. A formação da nacionalidade. In: TENGARRINHA, José. História de Portugal. Bauru: Editora da Universidade do Sagrado Coração, Fundação Editora da Universidade Estadual de São Paulo, 2000.
COSTA, Alexandre A. Introdução ao Direito: uma perspectiva zetética das ciências jurídicas. Porto Alegre: Fabris, 2001.