I am skeptical when reading your accounts of Grossi's history of law. In this post I am puzzled by the reference to the concept that every man has the ability to own property or to enter a contract. This is contrary to what I remember from history lessons. Serfs used to have no ability to own property, not even their modest homes: from the crofters of the Scottish Highlands to the Polish chlops, 10% to 80% of the population were serfs depending on the regions, until the 19th century. The main inheritor to whatever a serf possessed was his master, not his children; by law. Even free men mostly relied on communal pastures and communal mills, could sell their crop only in a given market town, and could purchase goods there or from wandering traders, themselves allowed only on certain routes.
Maybe the legal landscape was different in Italy or among the trading republics that dotted Europe, but it affected very few people.
One important miss from your accounts is the whole legal corpus on ranks, titles, and honour. While mostly irrelevant in the past 100 years, it used to be extremely important, superseding contracts.
Hi Archangel. Thanks as always for your comments. There are several points to be made here.
First, I believe in one of the next two installments to this series I offer a mea culpa for having given Grossi’s discussion of feudalism short shrift. He does discuss feudal law at length, but despite the relative shortness of his book it is incredibly rich in detail and I obviously had to draw lines somewhere. That was a place I chose. As your comments emphasize, maybe not wisely.
To be clear though Grossi’s arguments about the increasing rise of property as the definition of self and the rationalization that anyone (at least in theory) could own it was not intended to encompass or legitimize feudalism; on the contrary, that movement through the humanists and natural law, eventually into what he calls the legal Enlightenment, was precisely a movement away from feudalism, motorized by the mercantilist revolution. That movement was so motorized both in the sense that the emerging class of wealthy merchants financially backed the legal innovations – both in the funding of their new commercial courts and payment of lawyers to represent them in other courts – and in the fact that it was the emergence of this new mercantile economy which called forth a new idea of property. Whether that calling was motivated by pragmatic consequentialist concerns or ideologically veiled economic self-interest of course is a whole other discussion.
So, quite possibly, my editorial choices may have contributed to a certain opacity in the series’ representation of Grossi’s analysis along these lines. If that is the case, I apologize for any confusion I created.
Having said that though it is of note that I believe Grossi would dispute your representation of feudalism. He argues on the contrary that feudalism was a form of multiple ownership, such as would be inconsistent with the later Roman law influenced changes in late medieval European law. This obviously wouldn’t be ownership in the “fee simple” sense that we use the term today, but that exhaustive understanding is itself a product of the revolution in law executed by the humanists and French Enlightenment jurists.
But feudal serfs very much had property claims, and Grossi points to a long documented history of serfs winning cases in various courts – which of course are variable over time and place through European history – against their lord’s violation of their ancient, customary rights. It is precisely the long historical acknowledgment of such rights that made the enclosure actions in France and especially England such a massive rupture with legal and cultural history: precisely because those actions constituted a wholesale destruction of just those ancient rights of the serfs. The Enclosure Acts though, of course, were made legally and politically possible by the new conceptions of property ushered in by this spatialist revolution in law. And of course those new conceptions were economically driven by the “rationality” of optimum land use value under the conditions of the new mercantile economy. (Though, again, the line between such arguments and ideologically veiled self interest can’t be ignored.)
Whether you’re persuaded or not, I hope those remarks at least clarify Grossi’s position. At least insofar I properly understood it.
I fully understand the main argument that the merchant class promoted the new legal ideas from Roman law and natural. I believe that the mechanism resided in the humanistic culture embraced at the Renaissance by both the aristocrats and the merchants. This shared culture in the upper classes lead to the establishment of a new legal culture and soon tradition that made real the new legal abstractions and rationality both through acts and litigation.
When writing about serfs, I had in mind the Modern Times serfdom (often called second serfdom) not the medieval serfdom. Yes medieval serfs enjoyed many rights and most courts were willing to uphold them. The basic principles of medieval serfdom were : (1) personal servitude stemming from a pledge between a man and a lord; (2) land servitude where a peasant is a serf because he enjoys a servile plot (as opposed to an allodial plot). Both placed obligations on the serf and on the master. Personal servitude ended at the death of either and had to be renewed at every generation; it was the lowest rung in the vassalage chain. Land servitude ceased if the peasant renounced the servile land. After the Black death most serfs used their bargain power to refuse to reenter pledges of personal servitude and negotiated the conversion of servile land into allodial land. Thus ended medieval serfdom.
The second serfdom was incomparably worse, akin to the Late Antiquity slavery. Serfs were bound to land and could not leave. Their status was hereditary and unescapable. The land was sold with serfs. In Poland, Hungary, Russia and parts of the Holy Roman Empire serfs could be sold. Serfs typically owed both their produce and their workforce through chores. They lived mostly under local monopolies : they had to buy or sell in a designated market, mill grain in a lordly mill, bake bread in a lordly oven, etc. Such serfs lacked the ability to own property that Grossi mentions as an extension of personhood. They were numerous and their servitude endured until the 19th century. That is why I wonder about the scope of Grossi's work : is it Italy ? Western Europe ? Does it include Spain and Portugal, which had considerable idiosyncrasies, or Scandinavia ?
I do read your posts, albeit with delay, and find them immensely interesting though they conflict with my historical knowledge. Thank you for writing this series.
I see. In response to that I'd say two things. First, as perhaps alluded to, I may have been a bit cursory in my reading of the Grossi's sections on feudal law. As your comments well illustrate, I may have been misguided in that. In any event, while I don't recall a discussion of this second serfdom, it is possible I skimmed over it too quickly.
On the other hand, Grossi was covering an extraordinarily long and complex history in a remarkably short number of pages. Of course he would have to have streamlined his narrative to some degree. I can see why you'd consider exclusion of that second serfdom as too important an oversight. If, again, it was his oversight and not mine.
Dear Evolved Psyché,
I am skeptical when reading your accounts of Grossi's history of law. In this post I am puzzled by the reference to the concept that every man has the ability to own property or to enter a contract. This is contrary to what I remember from history lessons. Serfs used to have no ability to own property, not even their modest homes: from the crofters of the Scottish Highlands to the Polish chlops, 10% to 80% of the population were serfs depending on the regions, until the 19th century. The main inheritor to whatever a serf possessed was his master, not his children; by law. Even free men mostly relied on communal pastures and communal mills, could sell their crop only in a given market town, and could purchase goods there or from wandering traders, themselves allowed only on certain routes.
Maybe the legal landscape was different in Italy or among the trading republics that dotted Europe, but it affected very few people.
One important miss from your accounts is the whole legal corpus on ranks, titles, and honour. While mostly irrelevant in the past 100 years, it used to be extremely important, superseding contracts.
Hi Archangel. Thanks as always for your comments. There are several points to be made here.
First, I believe in one of the next two installments to this series I offer a mea culpa for having given Grossi’s discussion of feudalism short shrift. He does discuss feudal law at length, but despite the relative shortness of his book it is incredibly rich in detail and I obviously had to draw lines somewhere. That was a place I chose. As your comments emphasize, maybe not wisely.
To be clear though Grossi’s arguments about the increasing rise of property as the definition of self and the rationalization that anyone (at least in theory) could own it was not intended to encompass or legitimize feudalism; on the contrary, that movement through the humanists and natural law, eventually into what he calls the legal Enlightenment, was precisely a movement away from feudalism, motorized by the mercantilist revolution. That movement was so motorized both in the sense that the emerging class of wealthy merchants financially backed the legal innovations – both in the funding of their new commercial courts and payment of lawyers to represent them in other courts – and in the fact that it was the emergence of this new mercantile economy which called forth a new idea of property. Whether that calling was motivated by pragmatic consequentialist concerns or ideologically veiled economic self-interest of course is a whole other discussion.
So, quite possibly, my editorial choices may have contributed to a certain opacity in the series’ representation of Grossi’s analysis along these lines. If that is the case, I apologize for any confusion I created.
Having said that though it is of note that I believe Grossi would dispute your representation of feudalism. He argues on the contrary that feudalism was a form of multiple ownership, such as would be inconsistent with the later Roman law influenced changes in late medieval European law. This obviously wouldn’t be ownership in the “fee simple” sense that we use the term today, but that exhaustive understanding is itself a product of the revolution in law executed by the humanists and French Enlightenment jurists.
But feudal serfs very much had property claims, and Grossi points to a long documented history of serfs winning cases in various courts – which of course are variable over time and place through European history – against their lord’s violation of their ancient, customary rights. It is precisely the long historical acknowledgment of such rights that made the enclosure actions in France and especially England such a massive rupture with legal and cultural history: precisely because those actions constituted a wholesale destruction of just those ancient rights of the serfs. The Enclosure Acts though, of course, were made legally and politically possible by the new conceptions of property ushered in by this spatialist revolution in law. And of course those new conceptions were economically driven by the “rationality” of optimum land use value under the conditions of the new mercantile economy. (Though, again, the line between such arguments and ideologically veiled self interest can’t be ignored.)
Whether you’re persuaded or not, I hope those remarks at least clarify Grossi’s position. At least insofar I properly understood it.
As always, thanks.
Thank you for the thorough answer.
I fully understand the main argument that the merchant class promoted the new legal ideas from Roman law and natural. I believe that the mechanism resided in the humanistic culture embraced at the Renaissance by both the aristocrats and the merchants. This shared culture in the upper classes lead to the establishment of a new legal culture and soon tradition that made real the new legal abstractions and rationality both through acts and litigation.
When writing about serfs, I had in mind the Modern Times serfdom (often called second serfdom) not the medieval serfdom. Yes medieval serfs enjoyed many rights and most courts were willing to uphold them. The basic principles of medieval serfdom were : (1) personal servitude stemming from a pledge between a man and a lord; (2) land servitude where a peasant is a serf because he enjoys a servile plot (as opposed to an allodial plot). Both placed obligations on the serf and on the master. Personal servitude ended at the death of either and had to be renewed at every generation; it was the lowest rung in the vassalage chain. Land servitude ceased if the peasant renounced the servile land. After the Black death most serfs used their bargain power to refuse to reenter pledges of personal servitude and negotiated the conversion of servile land into allodial land. Thus ended medieval serfdom.
The second serfdom was incomparably worse, akin to the Late Antiquity slavery. Serfs were bound to land and could not leave. Their status was hereditary and unescapable. The land was sold with serfs. In Poland, Hungary, Russia and parts of the Holy Roman Empire serfs could be sold. Serfs typically owed both their produce and their workforce through chores. They lived mostly under local monopolies : they had to buy or sell in a designated market, mill grain in a lordly mill, bake bread in a lordly oven, etc. Such serfs lacked the ability to own property that Grossi mentions as an extension of personhood. They were numerous and their servitude endured until the 19th century. That is why I wonder about the scope of Grossi's work : is it Italy ? Western Europe ? Does it include Spain and Portugal, which had considerable idiosyncrasies, or Scandinavia ?
I do read your posts, albeit with delay, and find them immensely interesting though they conflict with my historical knowledge. Thank you for writing this series.
I see. In response to that I'd say two things. First, as perhaps alluded to, I may have been a bit cursory in my reading of the Grossi's sections on feudal law. As your comments well illustrate, I may have been misguided in that. In any event, while I don't recall a discussion of this second serfdom, it is possible I skimmed over it too quickly.
On the other hand, Grossi was covering an extraordinarily long and complex history in a remarkably short number of pages. Of course he would have to have streamlined his narrative to some degree. I can see why you'd consider exclusion of that second serfdom as too important an oversight. If, again, it was his oversight and not mine.
Thanks!
Fascinating perspective on the emergence of mass society as an entity. So much to think about here...
"Personal property, in fact, becomes identified with an individual’s selfhood..."
The extended phenotype?