Property Rights, Serfdom, and Institutional Divergence

Do institutions matter? Those who study them are sure they do. But others remain skeptical.

When I was a graduate student, I remember having a conversation with a colleague working on early modern England. This colleague said: “The significance of institutions is more apparent to you, working on Russia, because institutional obstacles are so present in the sources. We don’t see institutions the same way you do; they seem less relevant in the English context.”

This makes a certain amount of sense. When institutions function well, when they facilitate economic transactions rather than thwart them, one must look harder for them in historical sources.

That said, it is not only the institutional obstacles that left their mark in the historical record. There are instances where positive evidence of institutions that facilitated economic transactions appears in the archive. One important example concerns property rights (and mechanisms for their enforcement) under serfdom. In much of Europe, the formal mechanisms that existed to resolve disputes over property generated written evidence that survives in archives. This written evidence becomes more detailed and more abundant over time as these mechanisms proliferate and transactions become more sophisticated. But the institutional underpinnings were apparent, even in times when the fiscal and administrative capacity of states was relatively poor. In the Russian case, however, these mechanisms were largely absent, and the source base is much thinner and more uneven – even for the period after the abolition of serfdom in 1861.

Property rights in serf societies, whether medieval or early modern, are usually assumed to be the rights of nobles or ecclesiastical landlords to those holdings worked by serfs or the rights that landlords exercised over serfs themselves (as depicted in the image accompanying this post: the sale, by a landlord, of a Russian serf girl). This view assumes the Russian model of serfdom as the default form for all of Europe. But, in contrast to the Russian case, serfs in western and central Europe themselves had enforceable rights to property, as evident in sources from (at least) the late medieval period. Such findings suggest long-standing differences in the way these societies were organized and how they developed over time.

We talk about serfs in Europe as having been “tied to the land”.  They could not move, and they were forced to provide labor for those who owned the land they worked. While this conventional picture is true in a general sense, the reality was more complex. In most European societies, serfdom was a tenurial status. A landholding had certain obligations attached to it – labor dues or money rents that were owed to the lord. There were constraints on peasants’ mobility and on their ability to alienate those holdings to which obligations were attached. But these could still be sublet and transferred in various ways, and peasants could hold lands of different kinds (with feudal obligations and without). They could also work as laborers themselves or hire labor to perform obligations associated with their holdings. A single manorial economy usually consisted of a number of different kinds of tenancies mixed together, and a variety of tenants – both enserfed and free. Surviving court rolls for late medieval England (for example) indicate that as early as the thirteenth century there were lively local markets in land and credit among serfs, that transactions were formalized, and that established procedures existed for resolving disputes over them.

Perhaps more important, though, were the rights peasants across Europe had to the customary terms of their tenures. The co-evolution of local and state (royal) mechanisms for the enforcement of property rights and contracts and the gradual extension of access to appellate courts, beginning in the medieval period, made it possible for serfs to push back against attempts by landlords to change the terms of tenurial contracts. We can see similar processes at work into the early modern period. In the parts of France where vestiges of feudalism survived, these formal mechanisms for dispute resolution became increasingly prominent. East of the river Elbe, too, serfs used their property rights to push back against landlords. This could lead to long, drawn out legal battles during which serfs refused to perform their obligations while a lawsuit was pending – at great cost to landlords.

The situation was very different in imperial Russia, where proprietary serfs had few formal legal rights. In Russia, serfdom was not a tenurial status, but a socio-legal status – obligations to landlords were attached to this status rather than to a specific landholding. If one was a serf, one could not legally hold property in one’s own name or engage in economic transactions with free persons. Landlords were unrestricted in their right to levy rents and obligations on their serfs. If economic conditions changed in the agrarian sector, they could send their serfs to work in towns or factories and demand some portion of their earnings. They could transfer them to other estates or send them into exile or even sell them to another without land. They could expropriate them at will, since serfs had no formal legal recourse beyond the estates of their lords. For all these reasons, Russian serfdom is sometimes compared with slavery.  (Though in other important ways, it was rather different – an argument will have to wait for a separate post).

What are the implications of these institutional differences? This is an interesting question and one worth further investigation. They almost certainly mattered to how serfdom ended in these places and the way economies developed afterwards. Across Europe, an institutional endowment that was already in evidence in periods characterized by serfdom, enabled a relatively smooth, if gradual, transition to market labor in agriculture from the late medieval period on. Well established systems for the assignment and enforcement of property rights and their political-economic integration across levels of administration (local, manorial court systems to state or imperial appellate courts) were able to accommodate the transition of peasants from obligated subject tenants to free tenants or small, independent landowning farmers. In the Russian case, ending serfdom meant creating a brand new institutional framework from scratch into which newly freed peasants, who had previously been denied access to civil institutions, could be incorporated – a problematic process in many ways. The absence of clear and secure property rights enabled landlords to capture parts of the reform process (having been granted control over which of their lands they retained after 1861). Furthermore, the lack of administrative infrastructure meant that communal land tenure was retained for emancipated peasants, rather than granting them plots to be held in individual tenure. Given these institutional challenges, it is reasonable to wonder whether the short-term gains described for the Russian economy immediately after emancipation could have been sustained, even without the disruptions of the early twentieth century.

So, while it is true that institutional obstacles are often more visible in the historical sources, the kinds of institutions that facilitate rather than obstruct economic development do leave their traces. In this case, the traces suggest institutional differences across Europe that are both more significant and go back much further than is often acknowledged in the existing literature.