The Feudal Origins of the Western Legal Tradition
Forthcoming, Jahrbuch für die Ordnung von Wirtschaft und Gesellschaft (Ordo)
20 Pages Posted: 4 Jan 2020
Date Written: October 8, 2019
This paper draws a distinction between ‘communitarian’ and ‘rationalist’ legal orders on the basis of the implied political strategy. We argue that the West’s solution to the paradox of governance – that a government strong enough to protect rights cannot itself be restrained from violating those rights – originates in certain aspects of the feudal contract, a confluence of aspects of communitarian Germanic law, which enshrined a contractual notion of political authority, and rationalistic Roman law, which supported large-scale political organization. We trace the tradition of strong but limited government to the conflict between factions with an interest in these legal traditions – nobles and the crown, respectively – and draw limited conclusions for legal development in non-Western contexts.
Keywords: Legal origins, Economic history, Institutions, Norms, European history
JEL Classification: K1, N90, P51
Suggested Citation: Suggested Citation