Henry Maine’s “Society of Status” Under Feudalism

Even among intellects of the Victorian era, Sir Henry Sumner Maine (1822-1888) shone brightly: on the Cambridge University faculty, at the Inns of Court in London, in India leading legal-system reform, at Oxford University teaching jurisprudence, and writing now-classic works on the history of the law, institutions, and government, including the most famous, Ancient Law.

From a career focused on law, freedom under law, and popular sovereignty came the thesis with which he is identified: the contrast between the “society of status” and the “society of contract.” 

What conditions drove men to the society of status? What conditions enabled a society of contract? And, a related issue, here: What is too little government?

I lean on French scholar Marc Bloch (1886-1944) and his monumental Feudal Society published in France in 1940. Another source is Medieval Europe from 395 to 1270 by Charles Bémont and Gabriel Monod. It was published in 1902, but the salient facts about the history of Europe were known. 

By the end of the ninth century, the last effective European government, the Carolingian Empire, had dissolved. The “first feudal era” was characterized by the decline of government power across Western Europe. There was de facto anarchy across the continent’s vast forests and huge “wastes.” In villages and small remaining towns dwelt peasants, “lords,” chieftains, burgesses, and, above all, an emerging class called “lord’s men”--serving and being protected by the lord of a manor. 

Every traveler needed protection from robbers and brigands. From the eighth to the tenth century, Western Europe lived in terror. Attracted by its remaining wealth, murderous marauders invaded. From the eastern Mediterranean and North African coast came the Saracen (Arab Islamic) pirates. Over the Rhine, from the Steppe, raiders (loosely called Hungarians) surged, and from the far north the Scandinavians, or Vikings. Not once, but repeatedly for centuries (map), there were brutal assaults on every European coast from Northern Ireland to Provence.

No governing power succeeded in fielding an effective army against the invaders. Attempts did prevail on the battlefield but needed desperately was continuous government in all locales—what we call “standing armies.” Kings and princes could not pay for it. 

Thus, feudalism in Europe dates from the century following Charlemagne's death "because, in default of any central government, it was thru feudalism alone that any semblance of order could be kept.”

The era’s dominant economic, social, and legal relationship became the “lord” and his knights, tenants, and slaves. This was the society of status observed by Maine and the key was “homage.” A man put his folded hands between those of another man—his lord—and the two kissed on the lips. This customarily pledged lifelong service by one in exchange for “succor”—support, protection—by the other. 

Except in the slowly growing towns, no one could survive without subservience to a lord. In towns, artisans, traders, and the first manufacturers fiercely defended autonomy. (An individual alienated from his kin, or his lord, fled to a town.) But these were looted by invaders, too. As decades wore on, most towns were smaller and farther inland from the coast.

In Western Europe’s rigid “society of status,” no group approved of merchants. They responded by creating communes: pledging to each other mutual defense, aid, and equal rights. Gradually, their strength grew because theirs was the only wealth obtained not from agriculture (the only “honorable” money), inheritance, taxation, or looting—so towns became cities that fortified themselves, defended themselves, and settled their own legal issues. No single force did more to overcome the customs, social structure, economic weaknesses, and lawlessness of the era; cities prefigured an emergent rule of law and society of contract.

By the mid-eleventh century, the raids by Saracens, Hungarians, and Scandinavians were over because national governments had emerged. A chief precondition of such governments was widespread basic literacy, without which laws, courts, and administration had not been effective. (Many judges, even, had been illiterate.)  

Marauding had been so widespread and murderous that its cessation enabled a huge jump in the European population. That meant a denser population to rally against invaders, but, more important, taxes for stronger government. Governments committed themselves to control defined geographical areas. They became the monarchies and empires across Europe. This was the historically decisive emergence of the “nation state.”

At first, people welcomed governments as capstones on the lord-man hierarchy of protection-for-service. But, in Iberia, for example, the law said that it was a “free man” who did homage to a lord and could withdraw at any time. This was the concept of “contract,” not “status.”

As the second feudal era progressed, the contract with emerging new governments was that every individual, in return for the security of law, was bound to serve in time of war. After a thousand years of what we call the feudal era, men rediscovered the Roman concept (only partially realized by Rome) of freedom under law, including contract.

One summary of the influence of Maine, today, concludes: “…contemporary empiricists have demonstrated that Maine’s concept taken as absolute historical dogma will not stand up in detail; however, this does not mean that it may not be highly useful as a model of ideal types.”

In fact, I never viewed Maine’s crucial distinction between the society of status and the society of contract as anything but a contrast of “ideal” (conceptual) types—not “absolute historical dogma.”

Henry Maine had conceptualized two fundamental—and opposite—relationships between man-and-man and man-and government.