The Rights-Based System of Medieval Society
The medieval system [of Europe] had been a rights-based system. Each member of that society had a particular place that determined rights, obligations, and a well-defined role. It is a familiar but erroneous portrait of the medieval era that depicts its society as uniform and colorless. Rights-based systems can in fact yield enormous diversity, because though conformity may be enforced by law, it is not necessarily enforced by that most pitiless of masters, the individual ambition; thus such systems often encourage creativity, as the natural exuberance of individuals attempts to circumvent the rigidity of their assigned roles and the received wisdom. Yet these systems often strike us as irrational in practice because they do not attempt to match talent and performance with role….
In the medieval period, there had been a universal system of customary law, based on the rights of inheritance, charters, and grants. Customary law is the common law of practices. We are inclined today to think of common law as generated by courts, but this is really an abbreviation: common law is simply the customary law of the judiciary; it grows and is modified by the exercise of court practices. The medieval period was almost entirely ruled by a kind of common law, but the generating institutions of that law were seldom judicial courts….
Precisely because the inherited institutions were rights-based, they could not promote new arrangements that were violative of the customary methods. A prince alone could not rewrite the constitutional rules of his society’s governance to meet his own needs; that would require an institution that objectified the needs of the prince but was distinct from the prince himself[—the future princely state].
— Philip Bobbitt, The Shield of Achilles, pp. 87-88
Emphasis mine.
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