Our Modern Feudalist Society

Image courtesy of Stockvault.

The first case I ever studied in property law will always stand out to me. It involved a plaintiff who bought land from a Native American tribe suing a defendant who had bought the same land from the United States. Chief Justice Marshall held that the Native American tribe didn’t have the ability to sell the land – they lacked “title” to it – and so the defendant was the rightful owner. This was because the United States had acquired it from Great Britain, who itself had discovered and conquered the land fair and square.

This case is taught to all first year law students in Property classes.
It introduces a bunch of basic terminology for would-be property lawyers to understand. That point aside, the case specifically highlights the basic assumptions of property law in common law jurisdictions, that is, law created under the English Crown established by William the Conqueror in 1066. In other words, it shows exactly how property has been viewed by the law for just under a thousand years. These ideas form the backbone of how people own stuff today. That’s why the certificate for owning your car is referred to as your car title, among other things.

Everything everyone owns is looked at through this ancient lens. Yes, it’s acquired correction and modification over the years, but that doesn’t negate the fact that the feudalist perspective governs how we get stuff and prevent others from stealing it. Every single protection for your prized possessions and home comes from ideas first articulated by some French conquerors trying to figure out how they were going to manage their new island. That system was eventually referred to as feudalism, and the common law is one of the supports that propped it up.

These ancient assumptions still have effects to this day.
I’m not just referring to property law at this point, but the whole of the law. Feudalism was chiefly established to create the dependency of vassal nobles to their higher ranking lords. As such, higher ranking individuals carried more influence in everything the system supported. The best example of this is sovereign immunity, a doctrine which rendered the Crown immune to the judgment of its own courts. This principle exists in American law, although it’s currently waived by statute. Still, the higher in the food chain, the more leeway a person gets.

In modern use, this shows up in the ability of those who have resources are more likely to benefit from the court system. Money can get laws written (check out Saving Capitalism for info on it), but it mostly gets access to the best legal minds available. Regular individuals might get stuck with representation they don’t want. That’s important, because it puts one person at a disadvantage at the time when they need every advantage they can get.

In many ways, we still live in a feudalist society.
Feudalism had those same features which never got removed after the Renaissance. The only thing that changed was how wealth and land got acquired. England moved gradually away from nobility land grants, and private interests were able to acquire what was originally reserved for social elites. Here in the U.S., the same thing continued, but with the idea that at least nominally we’re not supposed to inherently favor one person over another.

Such an endeavor is hard to accomplish when we’re using a system which provides more resources to specific classes of people. If you doubt that, I’d suggest that you try to hire the best personal attorney in your community. Some people might not even be able to afford sitting down to meet with them, as meetings to engage an attorney can be billed. After the sticker shock wears off, remember that some businesses and people can hire teams of people just like that and not care about price tag.

Although we don’t have serfs who are tied to the land anymore, there are still systems in place which enforce that state of affairs. It never got fixed because nobody in 1787 thought it needed fixing. To be fair, all the people writing the Constitution had full access to the courts, so from their perspective things worked just fine. They didn’t worry about everyone who was in the country at the time – the Three-Fifths Compromise is another great example. Regardless, we still live with at least some aspects of feudalism still in place.