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> From Feudalism to Democracy—and Back
> The historic movement from feudalism to the modern state and then to political democracy began in the late Middle Ages and the early modern era. Feudal lords had massive landholdings wherein their word was law. They maintained their own military forces, and operated feudal courts to resolve disputes. These quasi-states had understandings (and sometimes clashes) with monarchies and with the Church. Feudal lords had plenary authority over their domains, although they themselves were subject to the higher authority of the monarch and the Church. During the heyday of feudalism, most contract questions, property disputes, criminal matters, domestic relations, inheritance, and other matters affecting ordinary folks were handled in the local courts. In principle, serfs had some customary rights, but masters ruled.
> The feudal system arose in response to the anarchy and vacuum of sovereignty left in Europe after the collapse of the Roman Empire and the ebb and flow of invaders from the east, north, and south—Huns, Goths, Arabs, Norsemen, and others. Some monarchies were potent, others weak; but as long as a feudal lord was a faithful vassal of the king, he was sovereign in his own realm. For nearly a thousand years, there was a four-way contention for power among kings, feudal lords, the Church, and the rising imperatives of commerce, with the monarchy gradually gaining sovereignty.
> In the late Middle Ages, commerce among different principalities was governed by a transnational body of customary commercial law known as the lex mercatoria. Commercial disputes were resolved by private tribunals created by the commercial community according to the norms of the merchant community itself. The results were recognized by monarchies. This system made it possible for a product to pass from country to country with the property rights of the owner recognized by other merchants and sovereigns. The slave trade was part of this commercial system, and it could only function thanks to this symbiosis between traders and kings, in which ownership rights to a chattel were recognized by monarchies.
> By the end of the 18th century, these struggles for primacy had been largely resolved in favor of the state. This came to be known by scholars as the Westphalian system, after the 1648 Treaty of Westphalia, which ended the Thirty Years’ War by giving the king the right to dictate the religion of his subjects. Nation-states gained more and more authority over realms previously governed by feudal lords, including the power to define and protect property rights, maintain a military and judicial system, and regulate commerce, labor, the professions, finance, trade, and domestic relations. The state gained a monopoly on the legal use of force. A post-feudal aristocracy still existed, but the monarch became increasingly sovereign. Yet the bias in favor of economic elites persisted.
> There followed another century of struggle to make the state democratic. Despite the democratizing trends, some feudal remnants remained well into the modern era. For example, until the early 20th century, under the English doctrine of primogeniture and the device of the entail, property owners were required to keep their estates intact and leave them to a single heir. In the U.S., supposedly “born free” of feudal heritage, many feudal doctrines from the common law of England were nonetheless incorporated into Britain’s North American colonies. In the U.S. as well as Britain, the doctrine of coverture effectively made wives the property of husbands. In much of the West, there were still property requirements for the franchise, left over from the aristocratic era.
> Throughout the 19th century, employers in the U.S. retained quasi-feudal rights over their workers through the operation of two common-law doctrines—the “entire contract” doctrine, which provided that workers who left an employer mid-contract had no right to be paid for any work they had performed, and the tort of enticement, which enabled employers to prevent their workers from departing their establishment to work for someone else. However, with the rise of commercial principles in the late 19th century, some individualistic approaches emerged. For example, the at-will rule that emerged in the 1880s gave individual laborers the right to quit their employment with impunity—and gave employers the right to fire workers for any reason, or for no reason. And, in the area of industrial accidents, no matter how egregious an employer’s negligence, courts reasoned that the worker had freely contracted to accept the risk and therefore had no recourse. Thus, in the case of labor law as well as other areas of commercial law, both the feudal remnants and the evolving modern market system favored the property owner.
