Feudalism was, in a significant sense, private and contractual rather than public; that doesn’t make it libertarian.

David S. D’Amato is an attorney, a regular opinion contributor at The Hill, and an expert policy advisor to the Future of Freedom Foundation and the Heartland Institute. His writing has appeared in Forbes, Newsweek, The American Spectator, the Washington Examiner, Investor’s Business Daily, The Daily Caller, RealClearPolicy, Townhall, CounterPunch, and many others, as well as at nonpartisan, nonpartisan policy organizations such as the American Institute for Economic Research, the Centre for Policy Studies, the Institute for Economic Affairs, the Foundation for Economic Education, and the Institute for Ethics and Emerging Technologies, among others. He earned a JD from New England School of Law and an LLM in Global Law and Technology from Suffolk University Law School. He lives and writes in Chicago.

As libertarians, our enemy is, Albert Jay Nock said, the state: the institution whose defining feature is its use of force to achieve its goals. It is this—the initiation of force—that libertarians reject, and the state is its embodiment, different not really because it employs violent means (certainly other groups and individuals do too), but because when it does so, its actions are thought to be morally legitimate. Yet the modern nation‐​state, the political form we are most likely to encounter today, is not the only “state” as Nock and most libertarians use that term. We have (or perhaps have had) other enemies: great empires that spanned thousands of miles and dozens of linguistically defined nations, city‐​states, and still other types of government. The point here is that political authority, as such, long predates the advent of the modern state, which is only one instantiation of it, called forth by certain historical and social currents.

The modern state is specifically defined in geographic terms, the sovereign person (whether individual or corporate) having jurisdiction over the people and activities that take place within its borders. This is in contrast to pre‐​modern, feudal government, in which the relationships of vassalage placed people in positions of authority over other people, not entire territories. Power, then, was geographically fragmented and decentralized, determined by discrete relationships, personal and contractual in nature. “Feudalism,” writes John Snape, “was about persons, rather than purposes.” The modern state represents a different kind of control, the completeness of which was not achievable in the feudal period. 1 It consolidated the scattered elements now associated with the concept of sovereignty. The Weberian state’s characteristic “monopoly of legitimate physical violence” was previously nowhere to be found, impossible in an age of such convoluted and overlapping powers. Feudalism was a complex reticulated system in which the power of law as conceived at present did not follow a straight line from government to citizen. Government was a private enterprise, the feudal estate the private property of the lord. Baronies were not administrative regions of a “public” government—one owned, at least in theory, by the people—but ancestral lands of particular families. The modern state, by contrast, is premised on an abstract, hypothetical contract, the social contract, the terms of which very specifically eschew such discrete, individualized relationships between the individual and the individual or individuals in power. Laws are to be applied, in theory, equally and uniformly, with justice blind to the differences of citizens standing before it.

If the Magna Carta represents, in part, the barons’ recognition of their own relative power (and the assertion thereof), then the modern democratic state seems to follow by subjecting political power itself to the will of the people. Exploring this transformation through an analysis of the French Revolution, Frank Ankersmit writes, “The people now gave absolute sovereignty to itself: all exercise of political power could be legitimate only on the condition that it could be reduced, via constitutionally well‐​defined lines, to the will of the people.” This apparent metamorphosis has given contemporary subjects of the modern state the impression that the state is approximately coextensive with the people and, therefore, with the common good. The people of the West’s ostensibly liberal democracies believe, with little doubt or hesitation, that the state belongs in a rather literal sense to the whole population of the nation, its power being the nearest thing modern, post‐​industrial society has to social power. And yet arguably a present‐​day government belongs to the public in the same way that the feudal estate belonged to the serfs: not at all.

In his notable work The History of Government from the Earliest Times, political historian S.E. Finer describes this “effacement of the distinction between public and private government,” which he regards as “the central point” in understanding the unique blend of social systems that comprised feudalism. Indeed, as a political and economic system, feudalism “antedated any public‐​private distinction,” 2 a feature that can make it difficult to parse for us as modern (or postmodern) readers. For example, many libertarians seem to reduce, often quite without reflection, the concept of “private” to roughly voluntary or non‐​coercive relationships. Sometimes this shortcut works, and the behaviors of actual institutions align with the sorting rules we use to class activities in society as being a part of either the good private sector or the bad public sector. It is supposed that organizations in the former category must rely on mutually beneficial trade or else voluntary contributions, whereas those in the latter category are permitted to use the coercive power of the law to compel and coerce, that is, to violate individual rights. These ideal forms are, perhaps, useful teaching tools, suggestive of the libertarian critique of contemporary political and economic dynamics, of our emphasis on the aggression/​non‐​aggression divide. Such a simple, binary framework, however, cannot withstand an encounter with the historical record, which is rather messier, unheeding of our neat, modern categories.

Along these lines, we should not, as libertarians, pretend that all things that happen to occur in what is called the private sector are reconcilable with the philosophy of individual rights and liberty. At various times and places, the kind of coercive power to which we object has been exercised by private individuals, whom social institutions have invested with the special privilege of lording over others. Indeed, we might argue (and many libertarians have) that we only ever confront political power and its myriad abuses through interactions with private individuals; there are only human beings and the various practices they adopt, after all. Or, as the great libertarian feminist Voltairine de Cleyre writes, prodding the “vain delusion” of government, “Government is as unreal, as intangible, as unapproachable as God. Try it, if you don’t believe it. Seek through the legislative halls of America and find, if you can, the government. In the end you will be doomed to confer with the agent, as before.”

Libertarians have occasionally pointed to feudalism as a society founded upon our ideal of “personal and voluntary bonds” rather than “bureaucratic and compulsory bonds.” 3 This is plausible, at least on its face. Libertarians have long advanced the idea of legal polycentricity, arguing that there is no need for a court of last resort or a clearly defined hierarchy of legal authorities. Feudalism bears many of the superficial features of a libertarian legal and political system: a government based on a highly decentralized network of contracts between private individuals. The system furthermore has clear “analogies with barter economics,” parties contracting for exchanges of “duties, protections and services.” 4

Still, the usefulness of such analogies, their capacity to clarify or to suggest the possibility of a libertarian private law society in the future, is limited by the fact that feudal dealings, though existing outside of the state in its modern sense, were nevertheless far from libertarian. As noted above, the important metric for libertarians is (or ought to be) the presence or absence of coercion (or aggression, violence, authority, etc.). That traditional governmental powers under feudalism were not commanded by the modern state is therefore not necessarily helpful in our effort to dispose the normative question of importance to us as libertarians: was feudal government built upon voluntary relationships and trades in the way prescribed by the normative theory of libertarianism. In his discussion of the feudal political order in The Ethics of Liberty, Murray Rothbard argues that feudal landlords were land monopolists, aggressors whose claims to the land were based on predatory conquest. For Rothbard, applying a classic Lockean standard of acquisition and ownership, the land belongs to those “engaged in transforming the soil,” the poor, dispossessed peasants who lived a life of hard manual labor. We find that the complex of agreements to which we apply the label feudalism, while certainly private, is in no way voluntary, arising in a context shaped by systematic historical violence. Contrary to popular belief, then, the public‐​private distinction is not the libertarian’s primary criterion, at least not without a further inquiry into what exactly the distinction means in context. Developing a more sophisticated understanding of the political history of feudalism can help us isolate the principles of libertarian thinking, both abstract and practical. Feudal realities test our reliance on crude dichotomies and easy explanations. Private property, contracts, and the lack of the modern state’s monopoly power may be necessary characteristics of a future libertarian society, but it seems that they are not sufficient.

  1. As Christopher W. Morris observes, “No single agency controlled, or could possibly control, political life in the ways now routine for modern states.”
  2. John Snape, “The ‘Sinews of the State’: Historical Justifications for Taxes and Tax Law,” in Philosophical Foundations of Tax Law, edited by Monica Bhandari (Oxford University Press 2017).
  3. Ryan McMaken, “Feudalism: A System of Private Law.”
  4. Hendrik Spruyt’s The Sovereign State and Its Competitors: An Analysis of Systems Change as quoted in Ryan McMaken’s “Feudalism: A System of Private Law.”