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Settler feudalism: Law&history: Clare Davidson, ‘Feudalism as comparative jurisprudence: F. W. Maitland and medievalism in Australian land law’, Law & History: Journal of the Australian and New Zealand Law and History Society, 12, 1, 2026, pp. 1-30

23Aug26

Abstract: Nineteenth-century legal practitioners across the British Empire reasoned with ideas of premodern England, including feudalism, Anglo-Saxons and the Nor- man Conquest. This article analyses the practice of legal medievalism in colonial Australia in conversation with the work of Cambridge legal historian Frederic William Maitland (1850-1906). Along the way, it suggests a small typesetting error in his and Frederick Pollock’s (1845-1937) two-volume The History of English Law before the Time of Edward I, first published in 1895. Maitland developed a new way of understanding premodern English law that helps characterise how it had previously been taken up in imperial contexts. His analysis of feudalism as a post-medieval mode of comparative jurisprudence helps explain the significance of legal records and political debates about feudal orders across the British Empire and especially in the Australian colonies. In Australia, legal practitioners and politicians instrumentalised the concept of ‘feudalism’ when debating its significance as the foundation of property and social relations in newly settled communities. Drawing on Maitland, this article considers the development and legacy of ‘feudal’ land law from the colonies of Australia to the early twenty-first century and argues that legal medievalism in historical and modern Australian law warrants further investigation as a distinct historical practice.


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