Before I dive further into Kingship and Law, by Fritz Kern, I want to spend a few minutes on the topic of serfdom. Kern spends much time on the relationship between the landed and the kings, what about those on the lower rungs of society’s ladder?
The term serfdom comes with a tremendously negative connotation. However, when considering this institution of social structure it might be good to keep in mind:
Taxes levied by the state took the place of labour dues levied by the lord….Serfdom is an institution that has always been commonplace for human society; however, it has not always been of the same nature.
I mention this not to justify, compare, or romanticize. However it might be beneficial to start with a bit of a cleaner sheet of mental paper when considering historical serfdom. At least the serfs had no misplaced views about their lot in life.
Serfs who occupied a plot of land were required to work for the Lord of the Manor who owned that land, and in return were entitled to protection, justice and the right to exploit certain fields within the manor to maintain their own subsistence. Serfs were often required not only to work on the lord's fields, but also his mines, forests and roads. The manor formed the basic unit of feudal society and the Lord of the Manor and his serfs were bound legally, economically, and socially. Serfs formed the lowest social class of feudal society.
Given what I have read of the concept of “justice” in Kern’s book, this term takes on a meaning different than what is commonly used today. To understand this concept of justice, the “law” of that time must first be understood. Law was not defined as whatever is enacted by the state, but was defined by that which is “old” and that which is “good.”
Age was then the most important quality even of objective law. Law was in fact custom….it is true that for law to be law, it had to be not only old, but also “good”….The law of nature of the Golden Age, in the ultimate analysis, stamped as unlawful every legal system resting upon the inequality of man.
This is not to say that there was no injustice. Only that law was common, based on custom; it withstood the test of time; and it was applicable and applied to all. Suffice it to say, serfs sat in a different class than did their lords – plus ca change, plus c'est la meme chose – but they were on the same train.
A hint at the relationship is offered in the following 7th century Anglo Saxon "Oath of Fealty":
"By the Lord before whom this sanctuary is holy, I will to N. be true and faithful, and love all which he loves and shun all which he shuns, according to the laws of God and the order of the world. Nor will I ever with will or action, through word or deed, do anything which is unpleasing to him, on condition that he will hold to me as I shall deserve it, and that he will perform everything as it was in our agreement when I submitted myself to him and chose his will."
The serf pledged his loyalty to a lord who acted “according to the laws of God and the order of the world.” His loyalty was conditional: as long as the lord acted in accordance with “our agreement when I submitted myself to him,” the serf was obliged to remain loyal to his oath. There were remedies if the lord did not keep up his end of the bargain. A serf was afforded several social and legal protections:
The landlord could not dispossess his serfs without legal cause and was supposed to protect them from the depredations of robbers or other lords, and he was expected to support them by charity in times of famine. Many such rights were enforcible by the serf in the manorial court.
Presumably being a serf was better than many alternatives available at the time – why would a serf insist on “legal cause” before being dispossessed by the lord? Why not simply rejoice at being set free? Why would the rulers establish courts if the relationship was totally one-sided (wait a minute, they do that today)?
There were various levels of “serfdom” – from freemen (who essentially rented the land from the lord, owing little or nothing more than the rent) to slaves (basically as the term is commonly understood). Often, individuals would voluntarily submit to serfdom – after a string of crop failures, for example. It offered the least bad of several alternatives. There was an exchange in the relationship – the serf would reside upon and work the lord’s land in exchange for protection and support in times of need.
The practice varied from place to place and from region to region. Some examples of these variations include:
The amount of labour required varied. In Poland, for example, it was commonly a few days per year per household in the 13th century; one day per week per household in the 14th century; four days per week per household in the 17th century and six days per week per household in the 18th century. Early serfdom in Poland was mostly limited on the royal territories (królewszczyzny).
"Per household" means that every dwelling had to give a worker for the required number of days.  For example, in the 18th century, six people: a peasant, his wife, three children and a hired worker might be required to work for their lord one day a week, which would be counted as six days of labour.
Serfs served on occasion as soldiers in the event of conflict and could earn freedom or even ennoblement for valour in combat. Serfs could purchase their freedom, be manumitted by their generous owners, or flee to towns or newly-settled land where few questions were asked. Laws varied from country to country: in England a serf who made his way to a chartered town (i.e. a borough) and evaded recapture for a year and a day obtained his freedom and became a burgher of the town.
A few days labor per year per household – even six days per week (for a family of six, equating to one day per week per family member); relatively low levels of “taxation” when compared to current, modern nation-state policies.
I believe it is valuable to keep this relationship of serf to lord in mind when diving further into Kern’s work – suffice it to say, for now, that “law” meant something different than is our current understanding, and much more credence is given to the reciprocal nature of relationships – and that this respect for law and oath (contract) extended throughout the society, and not only between king and lord.