Conclusion

THE FIRST OF the great revolutions of Western history was the revolution against domination of the clergy by emperors, kings, and lords and for establishment of the Church of Rome as an independent, corporate, political and legal entity, under the papacy.

The Papal Revolution had been in preparation for at least a generation. The first overt steps toward it were taken by the papal party in the 1050s and 1060s. In 1059 Pope Nicholas II, at the Synod of Rome, for the first time forbade lay investiture and established a procedure for election of popes by the cardinals, thereby taking the power to appoint the pope away from the emperor. In 1075 Pope Gregory VII threw down the gauntlet in his Dictates of the Pope. From 1076 to 1122 wars were fought in various parts of Europe between supporters and opponents of the papal authority and its program. Eventually, compromises were reached. Neither side was wholly victorious.

It was this total upheaval that gave birth to the Western legal tradition.

A system of law was necessary to the Western Church to maintain its

520- new, visible, corporate legal unity under the papacy; the disembedding of canon law from theology and liturgy, and its systematization and rationalizing, were needed as a source of legitimacy and a means of control by the central ecclesiastical authorities and also as an effective symbol of the separate corporate identity of the clergy as a whole. The new jus canonicum was also essential to the maintenance of the church's new set of relations with the various secular authorities. Relatively autonomous and rational systems of law were needed by the various secular authorities as well, in order to enable them to legitimate and effectuate their newly developing central controls and to maintain themselves in the new competition of polities.

The need for legal systems was not merely a practical political one. It was also a moral and intellectual one. Law came to be seen as the very essence of faith. "God is himself law, and therefore law is dear to him," wrote the author of the Sachsenspiegel, the first German lawbook, about 1220. That was almost a century after the Concordat of Worms had settled the Investiture Struggle, but it was nevertheless a direct expression of the philosophy of the Papal Revolution. It was, indeed, a direct expression of the spirit of the Concordat of Worms. No one in the West would have said it before 1075; after 1122 it was, in one form or another, a commonplace. Law was seen as a way of fulfilling the mission of Western Christendom to begin to achieve the kingdom of God on earth.

The Papal Revolution gave birth to a new formulation of the doctrine of the two swords that had been introduced five centuries earlier by Pope Gregory I. The earlier formulation had been concerned with the relation between earthly and heavenly spheres of Christian living. For the theorists of the Papal Revolution, however, the main problem was the relation between the ecclesiastical and lay authorities in the earthly sphere itself.

For the first time the spiritual sword was embodied in a system and a science of law, the newly systematized and rationalized canon law of Gratian and of the great lawyer-popes of the twelfth and thirteenth centuries. The papacy developed also the governmental institutions and the bureaucratic apparatus needed to make this legal system work: a professional judiciary, a treasury, a chancery. This was the first modern Western system of government and law. It was eventually emulated by the secular polities that took form in the succeeding generations.

It may at first seem strange to attribute to the revolutionary events of the late eleventh and early twelfth centuries the subsequent development of legal systems in the latter twelfth, thirteenth, and even later centuries. It might seem more logical to attribute the later developments to later events. Of course, without the later events there could not have been the later developments. Nevertheless, all the legal systems of Europe in the latter twelfth and thirteenth centuries manifested and embodied and carried to their conclusion principles that had been established in preceding generations. This is not to be understood in terms of a Hegelian progression of ideas; it is rather to be understood in terms of the dynamics of Western history, in which not only material and ideal factors but also, above all, great events themselves have exerted pressures for change in certain directions over a long period. To trace the growth of legal institutions in the late twelfth and thirteenth centuries back to the Papal Revolution of the late eleventh century, culminating in the Concordat of Worms, is no more strange than to trace the growth of racial equality in the United States in the late nineteenth and twentieth centuries back to the American Revolution of the late eighteenth century, culminating in the Civil War Amendments to the United States

Constitution.

That it takes several generations to make a revolution should not be surprising. Especially if one is concerned with the institutionalization of its goals, and with the necessary compromises that flow from the process of institutionalization, one must take into account long-term movements. In the case of the Papal Revolution, two of its major goals, rule by law and the rule of law -- that rulers must seek to effectuate their policies systematically through legal institutions and that they are themselves to be bound by the legal institutions through which they govern -- were quite new to Western society. If these principles were to be secure they had to be accepted and internalized as well as adapted and modified by the children and grandchildren of the people who first introduced them.

Most of the institutions, procedures, concepts, and rules of the Germanic folklaw disappeared in the centuries after the Papal Revolution. This did not happen all at once. The blood feud continued in many parts of Europe into the fifteenth century, despite the opposition of both canon law and royal law. Marriages of children continued to be arranged by their parents, especially among the nobility. Although Germanic procedures of compurgation were transformed into testimony under oath, nevertheless the measuring of the value of an oath according to the status of the witness showed traces of the old formalism. These are only a few examples of survivals. On the whole, however, the Germanic

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folklaw died out under the impact of the division of political authority into two parts, the ecclesiastical and the secular, the formation of the church_state and eventually of secular states, and the rationalization and systematization of church law and eventually of secular types of law.

Yet the integrated Germanic folk culture was a necessary foundation for the new program of rationalization and systematization of law. Western legalism was rooted in an earlier communitarianism. The Papal Revolution itself was only possible in a society already united as a populus christianus; the fight over who should control the church, and thus who should control "ideology" (as it would be called today), presupposed the existence of a common loyalty to the church and a common faith. The related question of who should control church wealth also presupposed the existence of a shared belief that that wealth should be used for religious purposes. The revolution shattered the unity that was the precondition for its occurrence. It erected and institutionalized new divisions of canon law and secular law and, within secular law, divisions of feudal, manorial, mercantile, urban, and royal law; within each of these divisions there were also divisions of reason and custom and command. The preexisting unity had been the unity of race, of soil, of class, of family, of faith. In fact, however, the various new, systematized, rationalized, ongoing, transcendent bodies of law were intended in part to preserve those old unities, although in very different forms from the ones that had previously prevailed.

The Germanic folklaw itself had been of one piece with the communitarian, essentially tribal society. Like Germanic myth, art, and language itself, the folklaw had been diffuse, embedded in custom, and thought to be more or less immutable. Christianity had introduced a dynamic element; it had cast doubt on the tribal values. But prior to the late eleventh century, despite some exceptions, Christianity had not been systematically reflected in the institutional life of the Germanic peoples; it was for the most part an otherworldly faith. The Papal Revolution, however, made Christianity into a political and legal program. The church became a state. Canon law became a specific means, first, of holding the church­state together, and second, of reforming the world.

To apply reason to custom, that is, to weed out the mass of unreasonable customs and to cultivate the reasonable ones into a system of law, was a bold program, to say the least. It was highly convenient, and not wholly accidental, that a manuscript of Justinian's Digest turned up in a library in Florence in the 1080s, and it was surely not accidental that very soon a university was founded at Bologna -- the first European

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university___ to study that manuscript. Henceforth the jurists had an entire dictionary, so to speak, in

which to find legal terms, concepts, standards, and rules, a ratio scripta, as the Roman law was then called, by which to sift the customs. It was as though the Old Testament had suddenly been discovered for the first time by Christian theologians. The Western jurists applied a new dialectical method to the Roman texts, directed toward the reconciliation of contradictions. They were thus able to draw from these texts conceptual implications which the Romans themselves had never dreamed o f __ a theory of contract law, a concept of rights of possession, elaborate doctrines defining justifications for the use of force, and the like. The jurists thus gave the West its characteristic methods of analysis and synthesis of texts. They taught the West to synthesize cases into rules, rules into principles, principles into a system. Their method, which is still that of legal science in the United States today, was to determine what various particulars have in common to see the whole as the interaction of the parts. This was the prototype of modern Western science, for it took the customs and the rules as data and adduced from the data the regularities____________________________________________________ the "laws"_______________________________________________________ that

explained them. Historically and sociologically, such a method was essential to the reconciliation of the contradictions among the conflicting legal systems__________________________________________________ in the first instance, the reconciliation of

canon law with secular law, and in the second instance, the reconciliation of the various secular le gal systems with one another.

If the dialectical method of scholastic philosophy was essential to the structuring of law in the West, the theological doctrines that accompanied the use of that method were essential to its basic concepts, and especially its concept of crime and punishment. The theology of the Papal Revolution was a theology of judgment. God was, above all, a God of justice. Through his incarnation in Christ, and Christ's sacrifice of himself for mankind, the original sin of penitent Christians was forgiven, but actual sins must be atoned for either in this life or in purgatory. A price must be paid for the violation of the law. Upon payment of the price, the law was vindicated, and the erstwhile sinner could enter paradise. This theology underlay the church's establishment for the first time of an "external forum" for the trial of crimes, as contrasted with the "internal forum" of the confessional and the sacrament of penance. A set of principles of criminal law was developed which was similar to that which prevails in most Western countries today: that there must be an external criminal act, that it must be prohibited by law, that it must manifest a direct or an indirect intent, that it must have proximately caused the harm, that it must be vexatious to the community.

Underlying these principles, and underlying the canon law as a whole, was the belief in a God of' justice who operates a lawful universe, punishing and rewarding according to principles of proportion,

-529- mercifully mitigated in exceptional cases. This theological belief corresponded to a political belief in the complex social unity called Christendom, in which the dialectic of interacting ecclesiastical and secular realms was regulated by a similar kind of justice_based_on_law and law_based_on_justice, with mercy playing an important role in exceptional cases.

The canon law, the first modern Western legal system, was conceived in the twelfth century as an integrated system of law moving forward in time. The church itself was conceived for the first time as a legal structure, a law-state, and it formed itself into a complex bureaucracy with a professional court, a professional treasury, and a chancery. The constitutional law of the church took the form of corporation law; it combined the Roman institutional (Anstalt) concept of the corporation with the Germanic fellowship (Genossenschaft) concept, adding to both the Christian concept of a group person, conceived in nominalist terms. From the canon law of corporations is derived the concept that the executive authority may not take certain actions without the "advice and consent" of a consultative body, and that such consultation rests on the principle that those who are directly affected by a decision should have the right to participate in making it. The canon law is also the source of modern distinctions between personal jurisdiction and subject-matter jurisdiction. In fact, limitations upon the competence and jurisdiction of the canon law are closely linked with constitutional standards for locating and limiting the church's sovereignty, for allocating governmental powers within it, and for determining basic rights and duties of members.

Systematization within the canon law took the form of the development of subsystems of law relating to marriage, wills, property, agreements, and delicts-based on the church's jurisdiction over sacraments, testaments, benefices, oaths, and sins, respectively. Each subsystem had its own structural features, and at the same time each shared the structural features of the system of canon law as a whole. Thus the canon law relating to marriage developed rules concerning nullity of marriages (based on fraud, duress, and mistake) that were similar to canon law rules concerning nullity of contracts generally and that were based on general principles that ran throughout the canon law. Restrictions imposed by secular authorities on devises of land led the canonists to develop a law of trusts which overlapped the law of succession and the law of property. In general, the canon law of wills, of contract, and of property was antifeudal, in the sense that the church favored freedom of testation, the enforceability of promises made without formalities, and full ownership of property. Also, contrary to what is sometimes supposed, the church strongly favored the charging of interest on loans -- indeed, the canonists first applied the word "interest" to

530- distinguish lawful charges for the use of money from unlawful charges ("usury").

That the definition of the jurisdiction of the church, and of the canon law, was a matter not merely of convenience but of principle, and of deep principle, for which men were ready to fight, bleed, and die, is illustrated by the martyrdom of Thomas Becket, who opposed King Henry II's effort to go back to certain limitations on ecclesiastical jurisdiction which Thomas considered to be offensive to the cause of freedom of the church under the papacy. In the Constitutions of Clarendon of 1164, the king had invoked the customs of his grandfather, Henry I, who had reigned until 1135. But the church had gained much ground during the so-called Anarchy of Stephen, from 1135 to 1154, before Henry II came to the throne. For six years Henry and Thomas struggled for a legal solution to their controversy; it was a legal conflict, over jurisdiction, and both sides had a very high appreciation of the role of law in resolving conflict of any kind. Eventually, Henry renounced the "offensive" provisions of the Constitutions of Clarendon, although it was never entirely clear which were the offensive provisions and which were not. The matter was ultimately settled -- again, not quite satisfactorily -- by the rivalry of the ecclesiastical and the secular courts. The secular courts would protect their jurisdiction by writs of prohibition, which, however, were difficult to apply and even more difficult to enforce. The ecclesiastical courts, if sufficiently provoked, could excommunicate the royal judges. If the pope himself was sufficiently provoked, as he was by the recalcitrance of King John, he could -- and did -- put the whole of England under interdict, thereby causing great distress. Mostly, the two jurisdictions cooperated with each other. The Papal Revolution was like an atomic explosion that split Germanic Christendom into two parts: the church, viewed as an independent, visible, corporate, legal structure; and the secular order, viewed as divided among various polities. The church formed a single state structure, governed by a single system of law, the canon law. Being the church and constituting, therefore, the spiritual sphere, it was supposed to be as close as humankind could come, in this world, to the divinity. The canon law of the church was, to be sure, human law; yet it was supposed to be also a reflection of natural law and divine law. The secular order, however, was less perfect, more primitive, more earthbound. Its law was, therefore, more tied to irrational factors, to power, to superstition, to decadence. Yet it was capable of being regenerated; it was redeemable; it had positive significance. The church could help to make it conform more fully to natural law and ultimately to divine law. The canon law could serve as a model for the secular legal orders.

Each individual type of secular law was more or less limited to a particular type of temporal affairs: the feudal to the feudal, the urban to the

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urban, the royal to the royal, and so forth. This distinguished secular law from canon law, whose jurisdiction, though limited, extended to certain types of sins committed by anyone anywhere.

Secular law had the task of lifting up and transforming the secular relationships which it regulated. Feudal relationships were transformed by legal concepts of mutuality of obligations between lord and vassal. Manorial relationships were transformed by legal concepts of the subjection of the lord to the manorial customs of his predecessors. Mercantile relationships were transformed by legal concepts of credit, partnership, and joint venture. Urban relationships were transformed by legal concepts of the liberties of citizens and by the constitutional character of the sworn communes. Royal relationships of king and subject were transformed by legal concepts of the subordination of the king to law and the right and duty of the subject to disobey, and even to kill, a tyrant.

Thus the secular polity was considered to be subject to analysis and subject to regulation. A new political science was created, represented above all by the works of the great twelfth-century writer John of Salisbury, which analyzed the character of government, the responsibilities of rulers, the manner of choice of rulers, and the obligations of subjects toward them. Jurists, including both Romanists and canonists, also contributed to theories of sovereignty and constitutional limitations upon the powers of rulers.

Secular law, including feudal and manorial law, mercantile law, urban law, and royal law, was much more rooted in custom and consequently much less subject to revision by learned jurists than canon law. (Roman law was a different thing altogether: it was a learned law, taught in the universities, not the positive law of any jurisdiction, not generally subject to change -- analogous in all these ways to legal history -- yet at the same time an ideal law to which all positive law was supposed to conform, and a subsidiary law that could be used to fill gaps.) Nevertheless, secular law was changed, and radically changed, in the late eleventh and early twelfth centuries. It was changed by the decisions of secular rulers as well as by the influence of learned jurists. It was systematized, and it was reformed. The church consciously set out to bring about its reform.

In the period from about 1050 to about 1200 western Europe experienced the emergence of feudal law as a system. Feudal rights and obligations became more objective, less arbitrary, more precise. They became more universal, more general, and more uniform. Examples are the rights and obligations of heritability of fiefs, alienability of fiefs, and commutation of feudal obligations into money payments. In addition, there developed a greater reciprocity of rights of lords and vassals: the lord was to protect, assist, and support the vassal, while the vassal was to

532- manage the fief. If the lord violated the faith of the vassal, the vassal was entitled to renounce the lord in the formal act of diffidatio. The vassal participated in administration of the lord's justice through suit of court. Thus feudal law gave the West its first secular experience of mutuality of legal obligation between persons of superior and inferior rank. Finally, feudal law acquired the character of a distinct and entire legal system, with integrating elements and with the capacity and tendency to develop over time. It was, to be sure, less systematic, less integrated on the conscious level, less professional or scientific than canon law; it remained largely customary law. Yet it moved in the pathway set by the canon law.

Lord-vassal relations were subject to a different legal regime from lord-peasant relations. The latter were characteristically encompassed in the custom of the manor. Typically, the Western lord of the manor was not an absentee landlord or mere tax collector, as in many non-Western feudal systems; he lived on the estate, supervised its management, and governed it as its political ruler. The peasants might be serfs or they might be free, but in either case they had certain rights under manorial law. For example, all peasants, including serfs, characteristically participated in the manorial court.

In contrast to feudal law, manorial law did not provide for contractual reciprocity between lord and peasant. However, group pressure was exerted by the peasants to exact more favorable conditions, which had the force of concessions reciprocally granted on condition of loyalty. This was reinforced by the legal right of the peasant, whether serf or free, to hold land. Also rent, taxes, and services were fixed by custom, and disputes over their extent and character were supposed to be resolved by manorial law. The manorial court, in which the peasants gave judgment together with the lord, decided criminal and civil cases, and cases have been reported in which decisions were granted to peasants against the lord. The peasant remained poor and oppressed; yet he acquired rights under a system of law. He was a person, a member of the manorial community, part of what was called "the whole homage." Indeed, in time his position improved as he found he could escape to the freedom of the city or to the monastery or school or to join in strikes or uprisings. In the fourteenth and fifteenth centuries the peasants began to absorb the manors, and the manorial system disappeared. Law had helped to pave the way for this development. The recognition of peasants, including serfs, as "citizens" of the manorial community was an implicit challenge to serfdom long before any movement arose to abolish it.

Feudal law and manorial law were destined to fade: manorial law to disappear altogether, and feudal law to remain as a fossil long after feudal economic and political relations had lost their vitality. Mercantile

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law, on the other hand, had a future. This body of law, too, was systematized in the late eleventh and early twelfth centuries as agricultural trade in the countryside and then overseas and intercity trade flourished. Thus capitalist mercantile law emerged as a twin brother of feudal and manorial law.

While the general population of Europe perhaps doubled in the period from 1050 to 1200, the urban population of Europe increased perhaps tenfold. Merchant guilds arose. Large numbers of traveling merchants participated in markets and fairs. A sophisticated body of legal institutions developed to handle mercantile transactions on a more or less uniform basis throughout the West.

Among the characteristic concepts and devices of mercantile law as it developed in the twelfth century were the concept of the good faith purchaser (whose rights in the goods might exceed those of the seller), symbolic delivery of goods through transfer of documents, implied warranties, the binding character of informal agreements, and joint ventures. Moreover, these characteristic features, which formed the structure of the integrated body of mercantile law, developed over time as customs were codified and interpreted. The notarized contract of exchange became the bill of exchange; the notarized promise to pay became the promissory note; sea loans and bottomry loans developed into a kind of insurance; bankers' letters became letters of credit. As in the case of canon law and (to a lesser degree) feudal law and manorial law, mercantile law gave the impression of the continuous cooperation of successive generations -- in this case, of merchants -- in making a body of law live and grow.

The thousands of new cities and towns of Europe also developed their own type of law, which also had the characteristics of objectivity, universality, reciprocity, participation, integration, and growth. Most of the old Roman cities had declined to villages and were refounded in the late eleventh, twelfth, and early thirteenth centuries. Typically, the new cities took form as covenanted, sworn communes, with charters of liberties granted by kings or feudal lords. They had a strong communitarian character, with obligations of mutual aid, mutual protection, common counsel, common consent to elections of officials, and participation in assemblies, in councils, and in adjudicatory procedures. They were usually exempt from feudal obligations. Here, too, are important sources of Western constitutionalism, especially in the area of civil rights and civil liberties of citizens.

Finally, a new type of royal law arose in the wake of the Papal Revolution. The king's spiritual authority over the church having been withdrawn, he henceforth governed as a secular ruler whose principal tasks were said to be the maintenance of peace and the establishment of justice in his realm. The Papal Revolution, by depriving emperors and

534- kings of their sacral character and of their role as supreme rulers of the church, reduced them to the status of temporal monarchs. At the same time, however, it enhanced royal power by its support of a new territorial concept of kingship, which helped to transform clan chiefs and feudal overlords into supreme rulers of a given geographical area. Formerly, kings had for the most part governed their magnates, wise men, and tenants_in_chief directly, and only indirectly, through them, the local and tribal leaders, subvassals, and subjects generally. In the twelfth and thirteenth centuries, as territorial rulers, they came to govern all their subjects directly, through royal officers who were delegated to perform more or less specific roles, such as the royal judges and tax officials. These royal officers were guided and bound by royal law. Like the pope, the kings of Europe came to rule through delegates who were professionals, not subkings, and who formed permanent government departments, such as a chancery, a treasury, and a judiciary. Government became a distinct activity, something less than politics as a whole (kingship) but something more than an aggregate of in dividual government offices.

That the development of royal law in the twelfth and thirteenth centuries -- including the "princely" law of duchies and other autonomous territories -- was strongly influenced by, and indeed was part of, the Papal Revolution is shown by the striking parallels between the various systems of royal law, on the one hand, and the canon law of the church, on the other. As Gregory VII in 1075 declared for the first time the power of the pope alone "to make new laws" (condere novas leges), so thereafter in every kingdom of the West the monarch came to be a "maker of laws" (conditor legum, as he was called in Norman Sicily in the mid-twelfth century). The Assizes of Ariano, the peace statutes in Germany, the possessory assizes of the English kings, the French ordonnances and Ctablissements all reflected the new belief in the power and duty of the monarch to legislate. Similarly, as the papal curia became a professional judicial body in the early twelfth century, so thereafter in the various kingdoms the curia regis was transformed from an assembly of notables to a court of law. Likewise, as the canon law became more structured and more scientific through the work of Gratian and his successors, so structured systems of royal law were gradually created, which, like the canon law, developed organically through interpretation and legislation. Everywhere civil law became separated from criminal law. Everywhere rational methods of proof were introduced to supplement or replace the old methods of oath-helping and ordeals. Everywhere there developed similar basic legal concepts of jurisdiction, of high and low justice, of seisin.

"Bodies" of royal law began to be created in the various kingdoms of Europe. Legal writers emerged who saw in the systems of royal law -- as

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earlier jurists had seen in the systems first of Roman law and then of canon law_an interlocking set of rules and institutions. Glanvill and Bracton in England, Eike von Repgau in Germany, Beaumanoir in France, and others "summarized" the laws of their respective territorial polities in substantial treatises. But before then, the laws themselves had been enacted with a view to their interrelationship. The Assizes of Ariano of King Roger II of Sicily, in 1140, in the very first article, announced the principle that ambiguities in the laws should and could be reconciled by interpretation. Interpretation, the drive for consistency and rationality, the "growth of definition," systematization, the view of law as a complex unity based on the synthesis of opposed elements_________________________________________________________

all these came to be accepted as important features of royal law, just as they had previously bee n accepted as important aspects of Roman and canon law from the time of Irnerius and Ivo, Azo and Gratian.

Presupposed in the concept of a body of law was the concept of its growth. Previously, in the periodic legislation of the Germanic rulers, each great "codification" had been conceived as a general recapitulation of customary law, superseding those that preceded it. After the eleventh century, new royal laws presupposed the continued existence of older ones, and, indeed, built on them. The law appeared to expand and develop, as one king added to the legislation of his predecessors. Perhaps the most striking examples of this are, first, the organic development of Sicilian legislation from the laws of Roger II (the Assizes of Ariano), to those of his sons, and to those of his grandson Frederick II (Liber Augustalis), and second, the series of possessory assizes and other writs issued by the English kings from the time of Henry II through the reigns of Richard, John, and Henry III.

The concept of the organic growth of law was associated with a principle of legality. It was taken for granted that kings ruled by law. "The land shall be built by law" -- so begins the first Scandinavian law book. At the same time, rule by law was supported in theory, though by no means always in practice, by a widespread belief in the rule of law. This was the belief -- expressed in the twelfth century by John of Salisbury and others, and in the thirteenth century by Eike von Repgau, Bracton, Beaumanoir, and others -- that the king himself was bound by law and that the king's subjects might even have, in some circumstances, the right to disobey his command if it was unlawful.

This belief was rooted, first, in the theological conviction that the universe itself was subject to law.

Second, this belief was rooted in the duality of secular and spiritual authorities, which placed both practical and theoretical limitations upon the power of each. Every kingdom of Europe, including even Norman Sicily, experienced the tension between papal and royal authority. Even the most powerful secular rulers had to reckon continually with papal

536- opinion, not only in their foreign affairs but also in their domestic policies, including the development of their legal systems. This was due in part to the fact that throughout the twelfth century, and to a lesser extent in the thirteenth (in other words, during the formative era of Western political and legal thought), the chief officers of' kings were themselves high ecclesiastics, who owed part of their allegiance to Rome.

Third, the belief in the supremacy of law was rooted in the pluralism of secular authorities within each kingdom, and especially in the dialectical tensions among royal, feudal, and urban polities. This, too, was part of the totality of the Papal Revolution. The very division between secular and spiritual polities presupposed many secular authorities within one spiritual authority, which in turn presupposed an interaction among the secular. The pluralism of secular authorities within each kingdom was, of course, not only a concept but also an overriding political, economic, and social reality. The cities of Europe were built on the foundation of communal self-government and the liberties of citizens. Feudal authorities, too, continually resisted royal encroachment on their privileges. It would be many centuries before royal absolutism could become feasible in most parts of Europe. Nevertheless, the Sicilian example is strong evidence that tyranny was possible despite great economic, political, and social decentralization, and that the belief -- elsewhere -- in the supremacy of law was therefore not merely a reflection of material conditions but also played a positive role in maintaining those conditions.

Fourth, the belief in the supremacy of law was closely linked to the mutuality of obligations between superiors and inferiors in the feudal hierarchy and the acceptance of a dialectical interaction between central and local authorities as well as between official and popular agencies of government. The right of the vassal to "defy" his lord and the right of the peasant to rely on the customs of the manor were important factors in the development of a legal consciousness that could be invoked against arbitrary power.

The interaction between central and local authorities depended on the development of the concept and reality of delegated authority. In almost all parts of Europe there emerged in the twelfth century a royal officialdom at the local level -- baillis, Richter, sheriffs, itinerant justices. They did not replace the local lords and other local authorities, but rather divided power with them. There also developed almost everywhere an interaction between royal judges and other royal officials, on the one hand, and people at the grass roots, on the other -- juries, councils of notables, Schoeffen. The existence of various forms of popular participation in the administration of justice was an important and, in the long run, perhaps even a necessary factor both in the successful

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establishment of a system of royal law and in the maintenance of its supremacy over the arbitrary exercise of power by the king himself.

The individual parts of the story told in this book are well known to specialists in various fields of history and law. Yet the story as a whole is singularly unfamiliar and conflicts with conventional preconceptions in many ways. It contradicts the usual periodization of Western history. It treats the history of Western civilization as a whole rather than as a history of individual nations. It attributes modern characteristics to what is generally considered to be a premodern era. It denies the predominantly feudal character of what is usually called the age of feudalism, and treats feudal and manorial law as complementary rather than antagonistic to commercial law, urban law, and royal law. It traces the roots of the Western legal tradition to a violent separation of the ecclesiastical polity from secular authority and to the formation within the church of the first modern Western legal system. In these and other respects the narrative recounted here must contend with widely accepted assumptions, views, and theories concerning not only Western history but also the nature of history itself. These assumptions, views, and theories presuppose a quite different narrative-one that is in fact not supported by specialized historical research of the past two generations. It is necessary, therefore, in the concluding pages, to confront squarely some of the theoretical obstacles to a full understanding of the formation of the Western legal tradition and to state some of the theoretical implications of the story told in this book.

Most educated people still divide Western history into periods of Classical Antiquity, the decline and fall of the Roman Empire, the Middle Ages, and Modern Times (starting with the Renaissance and Reformation). They tend to view Modern Times in terms of the histories of the individual nations that make up Western civilization, and they tend to look upon the Middle Ages as a background out of which Modern Times emerged. The fact that the Renaissance and Reformation of the fifteenth and sixteenth centuries were directed against an earlier Renaissance and Reformation of the eleventh and twelfth centuries has only begun to reenter historical consciousness now that the West is experiencing the end not only of Modern Times but also of the entire millennium of which Modern Times forms one-half. It is finally beginning to be more widely recognized that the earlier Renaissance and Reformation constituted the first great turning point in the history of the West, and that it was the source not only of the Western legal tradition but of other major aspects of Western social thought and social action as well.

The fallacies of the conventional periodization of Western history are closely related to the exaggerated nationalism of the nineteenth century,

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when "scientific history" first began to be written. Indeed, the raison d'etre of scientific history seemed to be, in many instances, the tracing of the growth of one's nation from tribal and feudal origins to contemporary glory and grandeur. Today nationalist historiography is giving way in many fields. In law, however, and especially in English and American law, nationalist historiography still reigns. The distinctive features of each national legal system within Western civilization are emphasized and their common features are minimized. Despite their common origins, each national legal system in the West is still hailed by its partisans for its unique qualities, which are said to correspond to the unique character and the unique history of the particular nation whose law it is. Comparative legal historians have only slightly counteracted this tendency by their traditional division of Western legal systems into the "Continental European" and the "Anglo_American." Lately, a third "family" has been added, that of the "socialist law" of the Soviet Union and Eastern Europe. The truth is, however, that these are all branches of the same faniily tree. All Western legal systems the English, the French, the German, the Italian, the Polish, the Hungarian, and others

(including, since the nineteenth century, the Russian) __ have common historical roots, from which they derive not only a common terminology and common techniques but also common concepts, common principles, and common values.

In addition to nationalist fallacies, legal historiography has suffered also from religious fallacies, both Protestant and Roman Catholic, which have obscured the continuity between the Catholic Middle Ages and post-Reformation modern European history. To these have been added also the fallacies of the Enlightenment, which discovered a Renaissance contemporaneous with the Reformation, as well as the fallacies of Marxist theory, which discovered a Rise of Capitalism contemporaneous with the Renaissance and Reformation. The obscuring of the continuity between medieval and modern has also obscured the discontinuity between the periods before and after the Gregorian Reform of the Catholic Church in the late eleventh and early twelfth centuries. As a result, the background of the Western legal tradition in the communitarian folklaw of the Germanic, Celtic, and other peoples of Europe of the sixth to eleventh centuries has been largely forgotten.

The story of the formation of the Western legal tradition has also been obscured by the emergence, in the late eighteenth and early nineteenth centuries, of another kind of historiography, which was closely linked to the new science of sociology. This new historiography is sometimes called "social and economic history" and sometimes "social theory." Its pioneers included Montesquieu, Hegel, Saint- Simon, Comte, Tocqueville, and others. Its later masters were Karl Marx in the midnineteenth century and Max Weber in the late nineteenth and early

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twentieth centuries. These "social theorists," in contrast to the "scientific historians," sought to explain history in terms of the social and economic forces that were at work beneath the surface of political and ideological events. They were viewed by the scientific historians not as "real" historians but as "theorists"; however, they were theorizing primarily about a real history, namely, the history of the West.

The social theorists of the nineteenth and early twentieth centuries were especially concerned to explain the revolutions which had periodically interrupted the course of social evolution. Marx, in particular, had a comprehensive concept of revolution, which is followed in this study; he saw revolution as a total social, economic, political, legal, and ideological transformation, and, indeed, a transformation of man himself. 1However, Marx's historical materialism led to oversimplified explanations of the causes of the great European revolutions and to a limited definition of social classes based on their relationship to the means of production. Thus he misconceived the Protestant Reformation and he missed the Papal Revolution entirely. Moreover, Marx extrapolated directly from the history of the European nations to the history of mankind, without sufficiently taking into account the importance of intermediate cultures such as the Western, the Islamic, the Chinese. As Robert Tucker notes, "For Marx the real social unit is the species, the human collectivity... all social revolutions are world revolutions." 2Thus Marx unconsciously identified the history of the West with the history of the world. His famous statement, "Revolutions are the locomotives of history," which was true of the West, was not true of non-Western cultures when he made it; partly because he did make it, it has since become true of some non-Western cultures.

Notwithstanding their rebellion against conventional historiography, the social theorists simply accepted the prevailing periodization of Western history into a Middle Ages that had begun at some uncertain time in the past and a Modern Age that had commenced roughly in the sixteenth (or possibly seventeenth or eighteenth) century. To this they added, however, a premonition that the modern period of Western history was about to be superseded by a new age.

The social theorists gave a specific content to the social-economic formation of the Middle Ages. They called it the age of "feudalism." The Modern Age, in contrast, came to be viewed as an era of "individualism" or of "capitalism," depending on whether social values or economic values were considered primary. The social theorists sought to analyze these successive types of social order and to explain how and why they had come into being. They used an historical and comparative method in order to create a universal science of social evolution. Marx contended that every society tends to pass from an "Asiatic" or slave economy to feudalism, from feudalism to capitalism, and from

540- capitalism to socialism. This progression was seen by him as an inevitable consequence of the dynamics of class struggle. The concept of feudalism was critical to this theory, which postulates that out of the conflict between a peasantry bound to the land and a feudal ruling class there arose, eventually, a new conflict between an industrial proletariat and a capitalist ruling class, and that out of that conflict there is destined to arise a socialist classless society.

Many non-Marxists have also attributed a universal character to feudalism, seeing it as a stage in the development of many cultures. The Japanese and Russian cultures, in particular, are seen as having experienced feudalism during the "medieval" period of their history. The cross-cultural study of feudalism has yielded interesting and valuable insights; yet it is deceptively cosmopolitan. Behind it lurks the ethnocentric question, "Which features of medieval Western societies are essential to a universal definition of feudalism?" Most social and economic historians have stressed four such features: a subject peasantry bound to the land (serfdom), a specialized military class (knighthood), a fragmented public authority in the hands of a nobility dispersed on landed estates (lordship), and a distribution of power and privileges among the nobility through a system of vassalage and dependent land tenure (fiefs). They have then looked for parallels in other cultures. This might be called a form of academic imperialism.

Omitted from most of the conventional definitions of feudalism is any reference to (1) the belief systems of people living under feudalism, (2) the relation between ecclesiastical and secular authorities in feudal systems, and (3) the types of legal theories and legal institutions that prevail in feudal societies. These omissions leave one without any guidance concerning the general significance of ideology, politics, and law under feudalism -- although, at least in regard to Western feudalism, there is no doubt that all three played an extremely important part in the social order as a whole. Even if, as most historical materialists postulate, ideology, politics, and law in the Middle Ages are to be viewed as a superstructure built on the economic base of the feudal mode of production, the crucial question remains, "How and why did Western feudalism produce a very different kind of superstructure from that produced by Japanese or Russian feudalism?"

For Marx the essential elements of feudalism were, first, small-scale agriculture with dependent land tenure ("the petty mode of production"), and second, a subject peasantry bound to the land (serfdom). These made it possible for the feudal ruling class to take the surplus value of the peasants' labor. Other aspects of feudal land tenure as it existed in the West in its heyday, such as vassalage, knighthood, and fragmented public authority, were not, for Marx, defining features of feudalism. He saw feudalism, as he saw capitalism, in terms of its

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conflicts, not in terms of its cohesion. Moreover, Marx was not interested in the fact that money and commerce played an important part in the economy of the feudal age in the West, and that in the twelfth and thirteenth centuries a flourishing urban civilization, with thousands of cities, coexisted alongside the petty mode of production. Contemporary Marxists, at least, do not__________________________________________________________ they cannot__________________________________________________________

deny that this is so, but they generally do deny that it has any great significance. They continue to rely on Marx's postulate of an unremitting antagonism between more or less static, self_sufficient rural economies and commercially expanding urban economies, resulting eventually in the ov erthrow of the former ("feudalism") by the latter ("capitalism").

Unfortunately for this Marxian analysis, the "feudal mode of production" -- that is, the manorial system -- had broken down by the end of the fourteenth century, all over Europe, and the "capitalist" mode of production, as defined by Marx, only came into being in the eighteenth, or at the earliest the seventeenth century. This leaves a "transition" period of some three or four centuries during which a central state power developed, namely, the absolute monarchies of Europe. It was the function of the new national states, according to Marxist theory, to repress the peasantry, "since the local organs of feudal power no longer survived." 3Thus it is argued that although the political system changed completely, the social-economic system remained the same. "The ruling class," says a leading Marxist historian, "remained the same, just as a republic, a constitutional monarchy, and a fascist dictatorship can all be forms of the rule of the bourgeoisie." 4This view paints history with a very broad brush indeed!

Underlying the Marxian interpretation of feudalism is the postulate that political rule is essentially a means by which the dominant economic class maintains its dominance; therefore, the form which political rule takes, and especially the legal form, is only an instrument of such class dominance. As Marx's partner, Friedrich Engels, wrote, "The jurist imagines that he is operating with a priori principles, whereas they are really only economic reflexes." ⁵Economics, and more particularly the economic interests of the ruling class, form the "material base" of every society, it is maintained; politics and law are only part of the "ideological superstructure" that is produced by, reflects, and preserves the base.

This scheme is thrown into confusion, however, by the fact that law under so-called feudalism not only supported the prevailing lord-peasant power structure but also challenged it; law was an instrument not only for enhancing but also for restricting the power of the feudal lords. The first professional jurists of the West -- professors in the universities, judges, lawyers in the employ of popes and bishops or of emperors, kings, and the feudal nobility-raised the question when and how the will of a ruler, if contrary to law, might be thwarted. This was not

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merely a philosophical question. It was a question that was built into the very system of political power that was then being created, a system characterized by what would now be called "checks and balances," derived from the dualism and pluralism of political authorities within the same social an d economic order.

The more sophisticated Marxist historians will concede the existence of a tradition of "legality" in the West, and of "the rule of law," but with few exceptions they will assert that it has no fundamental historical importance. 6They will grant, for example, as Rodney Hilton does, that the emergence of politically and legally autonomous urban communities in western Europe in the twelfth and thirteenth centuries distinguished "European... from other feudalisms." 7But it would be wrong, Hilton then adds, to attribute to communal independence the development of a new capitalist mode of production, or any substantial change in the class relations of lords and peasant. Therefore, he concludes, it has no theoretical importance. He would say the same about legality generally. Law, even politics, from his point of view, is part of the superstructure, part of the ideology, that is, it reflects but does not determine economic forces in society. Economic forces constitute basic reality ("being"); law, by definition, does not -- it is only part of "consciousness." That dogma dominates the entire argument.

Still, if different feudalisms--as Hilton indicates -- produce different legal systems, what was it that made feudal law in western Europe, for example, so different from feudal law in Russia or Japan? What was it that produced in the West the feudal contract, with its mutuality of rights and duties between lord and vassal; the fief, with its grant of tenure on condition of rendering services; the manorial court, in which the lord of the manor, the bailiff, and other officials, on the one hand, and the peasants, on the other hand, regulated their conflicting class interests? It must have been something other than feudalism as such, since feudalism existed elsewhere without producing these legal concepts and institutions.

But more than that, the economic system itself developed very differently in western Europe from the way it developed in Russia or Japan. Therefore, might not the differences in the legal systems of those three cultures have played an important part in producing changes in the economic systems, and not just the other way around? If so, then the model of base and superstructure becomes highly problematical. In fact, the development of law in the West under what is called feudalism, including constitutional law, property law, and the other parts of the legal system, was an essential precondition for the economic changes of the seventeenth to the nineteenth centuries which Marxists have identified with capitalism.

The historiography is basic to the theory: if the historiography is

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wrong, the theory falls with it. If the main features of modern Western law, the main legal concepts and institutions and processes, emerged in the late eleventh and twelfth centuries______________________________________________________ the heyday of

what social theorists, starting with the Enlightenment and the French Revolution, have called the er a of feudalism_then that fact in itself is a substantial refutation of the usual materialist view both of law and of history.

To persons who are not historical materialists, this refutation may be uninteresting. However, more than historical materialism is at stake. The distinction between feudalism and capitalism has become important to modernists generally, and especially to those who see the Modern Age as the prelude to a new and very different future. In that context, the concept of feudalism is translated into the concept of "traditional societies," or "preindustrial societies," which are thought to be more or less static, more or less natural, while capitalism -- and now socialism -- are associated with dynamic societies characterized by "modernization" and "industrialization." In fact, this seems to be the way a great many educated people see the world today.

But in reality western Europe during the period from the late eleventh to the early sixteenth century was a traditional society that underwent rapid and dynamic expansion and development in the economic as well as in many other aspects of social life. This contradicts the view held not only by many Marxists and neo-Marxists but also by many social theorists of other schools. Thus the anti-Marxist economic historian W.W. Rostow has argued that contemporary traditional societies in Asia and Africa are, in themselves, incapable of substantial change, and that in order to change they require an "exogenous shock" or a "take-off" produced by a sharp upward shift in investment accompanied by the emergence of a new entrepreneurial elite.9 This corresponds to the conventional (but mistaken) view that the feudal economy of medieval Europe remained static until it received an exogenous shock from the urban and commercial expansion of the sixteenth century. In fact, a great agricultural expansion occurred in the late eleventh and early twelfth centuries. Historians now speak of a "first feudal age" and a "second feudal age." ⁹Further, in the fourteenth century vassalage declined, the manorial system died out, and leasehold and other forms of property relations were used to create what much later was called "agricultural capitalism."

The English economic historian Perry Anderson has attempted to explain, from a Marxist point of view, the fact that only in Europe did capitalism arise out of feudalism. He attributes that development to distinctive features of European feudalism that are often considered by other Marxists to have been part of the superstructure rather than of the economic base. Anderson argues that the distinction between superstructure and base is not applicable to feudalism. In precapitalist

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societies, he states, "the 'superstructures' of kinship, religion, law, or the state necessarily enter into the constitutive structure of the mode of production." 10

The recognition of the integration of law and economy in feudal Europe seems, at first, to threaten the whole Marxian analysis. Perhaps, however, the Marxian distinction between base and superstructure can be saved by another means, namely, by limiting its applicability to times of breakdown in the social structure. Perhaps Marxists could agree that normally-in all societies -- economic and legal institutions entirely overlap. For example, property (ownership) has normally both an economic and a legal aspect, which are inextricably interrelated. But at certain times the two aspects may split apart, and Marx may have had such times in mind when he distinguished property in an economic sense namely, economic power, from property in a legal sense, namely, economic right. Indeed, the clue to a proper understanding of Marx's social theory may be that he interpreted all history in light of a theory intended to be applicable chiefly to times of revolution.

This would also help to explain Marx's transfer of nineteenth-century ideas of causation, derived from the natural sciences, to historical developments. He searched for scientific laws of history analogous to the scientific laws of physics and chemistry. He found such laws in historical materialism -- for example, the law that in every society the mode of production determines class relations between owners and nonowners of the means of production, which in turn determine the political development of the society. This monistic formula, which seems to be an extremely oversimplified method of explaining complex events in normal social life, served two important functions in Marxian thought: it explained the revolutionary origins of existing institutions and beliefs, and it provided a basis for a revolutionary attack upon them. Today, however, ideas of causation even in physics and chemistry are more complex, and in social history it has become less and less possible to speak of laws of causation at all. It is both more accurate and more useful to speak of the interaction of politics, economics, law, religion, art, ideas-without separating these inextricably interrelated aspects of social life into "cause" compartments and "effect" compartments. This is not to deny that some kinds of concerns and interests are more important, and more influential, than others. It is not necessary to retreat from a position of determinism to a position of relativism. The truth, however, seems to be that economic factors are of greater importance in some times and places, political factors in others, religious factors in others, legal factors in others, and so forth; and that of predominant importance in all times and places is the mode of interacton of these various factors.

From this point of view, the brilliant though often obscure writings on

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law by the great German social theorist Max Weber ( 1864_1920) represent a certain advance over classical Marxist thought. Weber rejected what he called the "evolutionary dogmatism of Marxism," 1 1 especially its assertion that all societies tend to pass through successive stages of development from "Asiatic" or slave economies to feudalism, capitalism, and socialism. He also rejected Marxist historical materialism, with its postulate of economic determinism. "If we look at the causal lines," he said in 1910, "we see them run, at one time, from technical to economic and political matters, at another from political to religious and economic ones, etc. There is no resting point. In my opinion, the view of historical materialism, frequently espoused, that the economic is in some sense the ultimate point in the chain of causes is completely finished as a scientific proposition." 12____________________________________________________

Moreover, Weber, in contrast to Marx, stressed the unique character of modern Western society and the "universal significance and validity of its direction of development." ¹³ He attributed the uniqueness and the significance of modern Western society to unique factors that had already been present in the premodern, precapitalist, pre-Protestant period of European history. For Weber, Western feudalism, the medieval Western city, and other features of "traditional" (as contrasted with "rational") medieval Western society contained within themselves forces that were lacking in the traditional societies of other world cultures, forces which were ultimately capable of transforming the West. 14

Thus Weber was able to perceive the unique character and unique importance of the early development of Western law, as well as its significance for later economic development. Only the Occident, he stated, had experienced a fully developed system of folk justice, a legal regulation of status groups under feudalism, constitutional controls over princely power by the estates, the replacement of a system of personal laws by "natural law," and the successive receptions of Roman law. "All these events... have only the remotest analogies elsewhere in the world," he wrote. "For this reason, the stage of decisively shaping law by trained legal specialists has not been fully reached anywhere outside the Occident." ¹⁵ The existence of highly developed, rational, legal institutions was, in Weber's view, a necessary precondition of the emergence of capitalism. "Economic conditions," he wrote, "have, as we have seen, everywhere played an important role [in the development of society], but they have nowhere been decisive alone and by themselves... To those who had interests in the commodity market, the rationalization and systematization of the law in general and... the increasing calculability of the functioning of the legal process in particular, constituted one of the most important conditions

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for the existence... of capitalistic. enterprise, which cannot do without legal security."

In rejecting -- or at least severely qualifying -- Marxist theories of economic determinism and of a universal pattern of social-economic evolution, and in emphasizing the unique character and the "universal significance and validity" of the history of the Occident, including the history of Western law, Weber's social theory reveals its indebtedness to the author's early training in law and more particularly in the history of European law. His first postgraduate degree was in law, and his first work was in the Berlin law courts. Then he returned to the university for another advanced degree in law, writing his dissertation on the commercial law affecting trading companies and artisan guilds in the Italian and other European cities of the twelfth to fifteenth centuries. Thereafter, at the age of thirty, he accepted a full professorship in economics at Freiburg University, and two years later he became a professor of sociology at Heidelberg University. Although he subsequently achieved fame as a sociologist, and especially as a sociologist of politics and religion, his sociological theories always drew heavily on legal history, and among his most important works was a book on the sociology of law.

Karl Marx, by contrast, although he too (sixty years before Weber) had taken his first degree in law, studying in Berlin under Germany's greatest jurist, Carl Friedrich von Savigny, rebelled not only against Savigny's historical approach to law but also against legal history and jurisprudence altogether. ¹⁷

Weber's influence as a social theorist generally, and especially as a social theorist of law, derives chiefly from his classification of all societies into various types. Each type of society embraces a corresponding type of economy, type of political system, type of law, type of religion, type of art style, within the society. Thus Weber was able to present an integrated portrait of the structural elements of a given type of society and of their interactions. However, the various types of society are not intended to be actual historical types but rather "ideal types," that is, models or paradigms. They are not usually to be found in history in "pure" form, he stated. Yet they are also not intended to be merely intellectual constructs. They are intended to correspond to some degree, however roughly, to actual historical experience. For example, the ideal type of law characterized by "formal rationality" is one in which law appears as a logically consistent structure of abstract rules, in terms of which the operative facts of a given legal case or problem can be identified and the case or problem resolved. This type of law serves the needs ofa capitalist economy, according to Weber, and is illustrated by many features of the actual legal systems of Western capitalist countries.

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Nevertheless, said Weber, the law of England, the leading capitalist country of Europe in the nineteenth century, was not characterized by formal rationality but was instead an example partly of the "traditional" type of law (resting on an established belief in the sanctity of immemorial traditions) and partly of the "charismatic" type (resting on the exemplary character of individual persons, especially judges). Thus it seems that the distinction among the three ideal types of law, formally rational, traditional, and charismatic, is intended, on the one hand, to clarify essential features of actual legal systems; on the other hand, when it fails to correspond to historical reality, Weberians can fall back on its analytical or "heuristic" value. The fact that a given system may fall partly within one and partly within another ideal type is not disturbing to them.

The ambiguity of the concept of ideal types is thus manifested in the use of historical examples to confirm them, coupled with an unwillingness to allow the use of historical examples to refute them. Weber himself wavered between their use as descriptions of actual social systems and their use as mere analytical frameworks.

In addition to the three ideal types of law-the formally rational, the traditional, and the charismatic -­Weber also postulated a fourth, the "substantively rational." In law, formal rationality signifies the formulation and application of abstract rules by a process of logical generalization and interpretation; its emphasis is on collecting and rationalizing by logical means all the legally valid rules and forming them into an internally consistent complex of legal propositions. Substantive rationality, by contrast, accords predominance not to logical consistency but to ethical considerations, utility, expediency, and public policy. 18The same distinction between formal and substantive rationality was applied by Weber to economic action; the former refers to economic calculability, the latter to the economic fulfillment of

ethical, political, utilitarian, egalitarian, hedonistic, or other such values or goals. However, substantive rationality in law or economic action does not correspond to any historical type of society (although Weber saw it emerging in "the anti-formalistic tendencies of modern legal development" and possibly in a future socialist society), 19whereas formal rationality both in law and in economic action is said to be characteristic of social action generally in capitalist society since the sixteenth century.

Similarly, traditional law is said by Weber to be characteristic of traditional societies, and charismatic law of charismatic societies. He defines "traditional" as "determined by ingrained habituation." In law, at least, the term "traditional" seems to correspond to what is usually called "customary." In "traditional authority," legitimacy is based on "the sanctity of age-old rules and powers." "Obedience is owed not to enacted rules but to the person who occupies a position of authority by tradition

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or who has been chosen for it by the traditional master." Law is not openly created; innovations can be legitimized only by disguising them as reaffirmations of the past. Gerontocracy (rule by elders), patriarchalism, and patrimonialism are types of traditional domination. Ancient China, Egypt, and Islam provide examples. Feudal authority, according to Weber, has many characteristics of patrimonial, and hence traditional, authority, though "Occidental feudalism is a marginal case of patritnonialism." 20_

"Charismatic" is defined as determined by "devotion to the sanctity, heroism or exemplary character of an individual person, and of the normative patterns or order revealed or ordained by him." This is perhaps the least clearly conceived of Weber's types of authority. The word "charisma" means "the gift of grace," and it was used in the early Christian centuries to refer to the power of healing given to a Christian by the Holy Spirit. The great German legal historian Rudolph Sohm used the term "charismatic" to refer to the concept of sacramental grace which underlay the law of the church prior to the twelfth century. Weber took the term from Sohm and applied it to all individual personalities "endowed with supernatural, superhuman, or at least specifically exceptional powers or qualities." Weber included among these not only "saviors, heroes, and prophets" but also magicians, shamans, and demagogues, arguing that "value-free sociological analysis will treat all these on the same level." ²¹ Weber stated that rational authority, especially that subspecies of rational which he called bureaucratic, is "bound to intellectually analyzable rules, while charismatic authority is specifically irrational in the sense of being foreign to all rules. Traditional authority is bound to the precedents handed down from the past and to this extent is also oriented to rules. Within the sphere of its claims, charismatic authority repudiates the past, and is in this sense a specifically revolutionary force." ²² It would seem, then, that there could be no such thing as charismatic law. However, Weber avoided that conclusion by postulating that although "in its pure form charismatic authority has a character specifically foreign to everyday routine structures," nevertheless, it can be transformed into such structures; it can be "routinized." Indeed, since it is inherently unstable, it must be so transformed if it is to survive, becoming "either traditionalized or rationalized or a combination of both." ²³ Weber found examples of such "routinization of charisma" in ancient Roman society, Buddhist and Hindu societies, the Roman Catholic Church, German kinship and village society, and elsewhere. At one point he suggested that all types of authority and of law were originally charismatic: not only what is right in individual cases but also general norms for all future similar cases were revealed by charismatically qualified persons. "Such revelation of law... is the

parent of all types of legal 'enactment,' " Weber wrote. 24 Moreover, "characteristics of the charismatic epoch of lawmaking and lawfinding have persisted to a considerable extent in many of the institutions of the period of rational enactment and application of the law... As late a writer as Blackstone called the English judge a sort of living oracle..." 25 _____

Weber's concept of routinization of charisma introduces a dynamic element into what otherwise is an essentially static model. Another dynamic element is the transition from traditional to rational types of authority and law, in which the corps of legally trained specialists of the traditional society plays an important part in systematizing law to meet the needs of the new rational and bureaucratic society. It appears, however, that only the Occident has actually developed endogenously from a traditional to a rational, bureaucratic type of society, and Weber finds the sources of that development in the unique events of Western history rather than in any general tendency or "law of development" of traditional societies. Weber declares that "from a theoretical point of view, the general development of law and procedure may be viewed as passing through the following stages," and then he lists several stages, corresponding roughly to charismatic, traditional, and formal-rational types; however, he follows this immediately with the statement that "in historical reality the theoretically constructed stages.... have not everywhere followed in the sequence which we have just outlined, even [in] the Occident." ²⁶

If one disregards Weber's sociology and his classifications, and considers only his description of specific features of Western legal institutions, one cannot help being impressed by the enormous amount of detailed information that he presents about the history of Western law during the eight centuries of its development. He confirms many of the root facts that form the foundation of the present study: that the Investiture Struggle of the late eleventh and early twelfth centuries laid the foundations for the separation of church and state, that the new canon law of the twelfth century was the first modern Western legal system, that the reciprocity of rights and duties of lord and vassal distinguished Western feudalism from that of other societies, that the Western city of the twelfth century and thereafter was unique in conferring constitutional rights upon its citizens. Yet Weber is prevented from drawing the right conclusions from these facts by his historiography, which postulates a sharp break in the sixteenth century between the Middle Ages and Modern Times, and between feudalism and capitalism. For Weber, as for Marx, Western law is bourgeois law, capitalist law, or in Weber's peculiar terminology, bureaucratic law, formally rational law.

If one applies Weber's classification of ideal types of law to the actual

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legal systems of the West as they emerged in the late eleventh and early twelfth centuries one is struck by the fact that in each of those legal systems all four of his ideal types were combined.The new canon law, the new urban law, the new feudal law, the new manorial law, the new mercantile law, the new royal law __ all emphasized the importance of rules and of logical consistency in the application of rules; indeed, if one concentrates on the law taught in the universities, one sees the seeds of the conceptual jurisprudence of the nineteenth_century German Pandectists, which Weber took as the apotheosis of formal rational, bureaucratic law. They all emphasized also the importance of precedent and custom, which for Weber was the hallmark of traditional law. In addition, canon law and royal law, especially, had strong charismatic elements, looking to the pope or the king as the divinely appointed oracle of the law; and the other systems, too, preserved many links with the divine and often the magical. For example, all relied heavily on oaths. Finally, Weber's concept of substantive rationality was reflected in the emphasis on natural law and equity, in the sense of reason and conscience, which required rules to be interpreted in light of their purpose and which overrode "strict law" in exceptional cases, protecting the poor and helpless and enforcing relations of trust and confidence.

It is likely that such a combination of the logical, traditional, sacred, and purposive aspects of law was and is essential for an effective integration of law into an organic unity -- a body of law that is conceived to have the capacity for continuous growth.

It is evident that Weber's classification of law into ideal types does not in itself provide an adequate basis for a social theory of law. It is useful as an introduction to an analysis of the similarities and differences among various historical legal orders, but it does not explain those similarities and differences. It does not answer the question "Why did charismatic law become traditionalized or rationalized in one society and not in another?" Moreover, it does not even mention, much less explain, the fact that the Western legal tradition is itself a combination of all four ideal types.

Weber's own explanation of the uniqueness of Western law, and of the differences among legal orders generally, came not from his theory of ideal types but from his theory of politics, and especially his theory that the primary motive force in political life is domination, and the primary means of domination is coercion. It was the "diversity of political power relationships," he wrote, that was primarily determinative of the important differences among legal orders. Even differences in the nature and function of legal specialists in diverse cultures, to which Weber rightly attributed great significance, were explained by him as "largely dependent upon political factors," by which he meant factors of political power. ²⁷

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Thus Weber remains in the tradition of economic and political history to which Marx also belongs, but in contrast to Marx he traced the underlying causal factors in history_____________________________________________________ despite occasional

disclaimers___ to politics rather than to economics. By the same token, he attached more importance

than Marx did to the role of ideas in history. For both of these reasons he also attached more importance to the role of law, in which political and intellectual elements are always combined. But ultimately Weber traced both ideas and law to politics, and politics itself to domination and coercion. Charisma, tradition, and rationality were, for Weber, primarily sources of legitimation of political authority, whereby coercion could be more effectively exerted.

In addition to Marxian and Weberian types of social theory a third, much less complex kind of sociohistorical analysis has been developed in the writings of anthropologists concerning the rise of "state-level societies" in various non-Western cultures -- among the Incas of the Andes, the Mayas of Mesoamerica, within the Islamic civilizations of the Near East, and in ancient Egypt, India, and China. Many anthropologists have returned to nineteenth-century evolutionary concepts, stating that small egalitarian bands of single families developed into larger tribes based on groups of families, and that these in turn evolved into chiefdoms with ranked lineages and ultimately into stratified, differentiated, centralized states. The most important causes ("prime movers") of the transition from chiefdoms to states are said to have been new technologies of irrigation, warfare, population growth, and trade. In addition, two other factors, much less specific in nature, are sometimes stressed: increased "cooperation and competition" among differentiated groups in the society and the "integrative power" of great religions and art styles. A representative view is that no single cause has been operative, but that in general the environment and the economy have been decisive in producing a "hierarchical arrangement of the members and classes of society which [in turn] provides the actual integration in states." "The

critical contribution of state religions and state art styles is to legitimate that hierarchy, to confirm the divine affiliation of those at the top by inducing religious experience." Cooperation and competition, including the institutional structures and processes of law, are viewed as wholly neutral: "they can as easily function to maintain homeostasis as to promote evolution." 28

The key to the emergence of these state-level societies is said to be "stratification," that is, differentiation between rulers and ruled, and, among the ruled, between various groups and classes. With stratification came conflict, and out of that conflict came political centralization; the state, in turn, was supported by logical, systemic explanations of the universe, especially through science and theology, as well as by logical, systemic social control in the form of law.

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Although the authors of these anthropological theories have paid little attention to early European history, they have tended to assume that the emergence of the state in the West, together with its systems of theology, science, and law, followed a course similar to that taken in other cultures. In fact, however, there are several important differences between the emergence of a state_level society in the West and its emergence in other cultures; and these differences resist explanation not only by the anthropologists' theories but also by the sociological theories of Marx and Weber.

The first difference is that it was not "the state" that first emerged in the West in the late eleventh century but rather the church in the form of a state. Moreover, although the church was centralized, and had a centralized and systematized law, it only claimed to govern half of life. The other half was governed by various secular authorities which coexisted with the church and with one another in the same territory. The political and legal institutions of the secular authorities gradually became centralized and systematized during the two or three centuries after the emergence of the centralized church and its centralized and systematized law. There was cooperation and competition --sometimes acute competition -- between the state-level church and the state-level secular authorities, as well as among the state-level secular authorities themselves.

A second distinctive feature of Western society in the first principal stage of its development was that dialectical tensions existed in theology, science, and law, corresponding to the dialectical tension between the ecclesiastical and secular political authorities. The tensions between this world and the next, between reason and faith, and between human law and divine law threatened to tear Western Christendom apart; and ultimately, in the Protestant Reformation, they did.

Third, the society was held together, and its theology, science, and law were given their logical and systemic character, in part by a unique sense of development in time, of ongoingness, of evolutioncoupled with a recollection of a great revolution in the past and a premonition of revolution in the future. The experience of a dialectical interaction between revolution and evolution, taking place over centuries, is a unique feature of Western history. The church looked back to the Gregorian Reformation and to the founding of the jus novum by Gratian, and it resisted new reformations such as those advocated by Wycliffe, Hus, and the proponents of the conciliar movement; city-states looked back to the issuance of their charters of liberties, which were periodically renewed, and resisted or welcomed political rebellions and reform movements from without and within; kingdoms were caught in a similar dialectic of legal evolution, slow or rapid, with fundamental revolutionary change and the Last Judgment in the background.

Neither anthropological theories of stratification nor sociological theories of economic determinism or of types of political domination can explain these distinctive features of the Western legal tradition. They do help to explain the need or desire for some kind of legal order, but not the need or desire for the distinctive kind of legal order, with its distinctive dynamics, that actually emerged in the West.

Yet the theories of Marx and Weber concerning law, its history, and its relation to economics and politics, as well as the anthropological theories of the rise of state-level societies, deserve consideration, partly because they have been widely accepted (though usually in watereddown versions) and partly because they suggest answers to important questions. One is challenged either to accept those answers or to find better ones. If law is not primarily an instrument of class domination, then what is it? If Western law in its formative era was not an ideological reflection of feudalism, then what was it? If contemporary Western law is not based on private property, freedom of contract, and other institutions of capitalism, on what is it based? If the characterization of the Western type of law as formal rational, and of the social order which it serves as bureaucratic, is not satisfactory, then what characterizations would be more appropriate? If law is not part of the ideological superstructure of a society, built on a material base, whether economic ( Marx) or political ( Weber), then is one driven back to an unacceptable Hegelianism, which views history in terms of the clash and synthesis of ideas? Must one believe that Western legal concepts and values simply sprang into being by an intellectual or spiritual effort and were themselves an initiating factor or driving force in the formation of Western economic and political systems?

Both Marxist and Weberian social theory serve as a valuable warning against the temptation to resort to a purely ideological, or idealist, explanation of the development of law and legal institutions. The social theorists are surely right in their belief that the emergence of sophisticated modern legal systems in the West is not to be explained simply as the result of a clash of ideas. It was caused in part, to be sure, by a political struggle of persons and groups with conflicting ideas; it was the result, in part, of a revolution. But the question for social theory is, "What caused the revolution?" If the revolution is only recounted in narrative form and not explained, there may be a hidden implication that it was in fact only what it appeared to be on the surface -- a political and ideological struggle of elites (the papal party versus the imperial or royal party). Was not the revolution also directly related to what was happening among the mass of people living in villages, on manors, and in towns? If the questions of power at the top and of official ideology were, in fact, directly related to social and economic life at the bottom, then the new legal systems that came into being may be explained not

554- only as part of political and intellectual history but also as part of social and economic history.

Even the Marxist classification of law as part of the ideological superstructure may lead to a treatment of legal history in terms merely of the unfolding of official legal policies and legal concepts rather than in terms also of regulation of the social and economic life of the whole society. Law is seen by many Marxists as separate from the economic base; property as a legal institution is seen as separate from property as an economic institution; and although tribute is paid to the basic Marxist postulate that law is a reflection of economic class interests, what is treated under that heading is not the way law actually functions in social and economic life but the way it expresses dominant social values or otherwise displays its ideological character.

An important corrective both to an idealist conception of law and to an elitist theory of political-legal change has been provided by those historians, sociologists, and anthropologists who have examined legal policies and concepts, and legal institutions generally, as they manifest themselves in social life at the base of the social pyramid, that is, among the great majority of the people of a society. In the era of the Papal Revolution that meant the mass of tribesmen and villagers, free peasants and serfs, artisans, traders, parish priests, monks -- as contrasted with chiefs, princes, lords, bishops, abbots, lawyers, scholars. A study of the structure of the lower echelons of society at that time shows that there was a close relationship, and an interaction, between what was happening at the bottom of the social pyramid and what was happening at the top.

More particularly, the system of competition and cooperation among ecclesiastical and secular authorities which emerged from the Papal Revolution could not have been established unless there had developed in preceding centuries a grass-roots group pluralism, with intermediate groupings between the mass of peasants and the top layers of imperial and royal authority. ²⁹ Similarly, the political unification of the Roman Catholic Church under papal authority could not have taken place unless there had developed in preceding centuries a grass-roots community of the faithful, a populus christianus,extending throughout Western Christendom. In addition, the systematization of law within the various communities, ecclesiastical and secular, was possible only because there had previously developed an unsystematized, informal structure of legal relations within those communities. Lord­vassal relations -- knighthood, benefices -- had come into existence. Lordpeasant relations had survived peasant revolts and had taken form in a manorial economy. Rodney Hilton reports that as early as the tenth century, villages in Normandy elected delegates from regional gatherings to a general peasants' assembly, and, in addition, that in this

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early period there grew up the practice of negotiation between the peasants and the village authorities over labor services, dues, fees, and rights. 30 From the_b ottom up, each echelon was able, on occasion, to demand rationality from its superior. 31 This occurred long before law became a university discipline, long before there were professional lawyers and judges, long before the various bodies of law became systematized.

Thus the Western legal tradition grew -- in part -- out of the structure of social and economic interrelationships within and among groups on the ground. Behavioral patterns of interrelationships acquired a normative dimension: usages were transformed into custom. Eventually custom was transformed into law. The last of these transformations -- custom into law -- is accounted for partly by the emergence of centralized political authorities, when a conscious restructuring at the top was needed to control and direct the slowly changing structure in the middle and at the bottom. Law, then, is custom transformed, and not merely the will or reason of the lawmaker. Law spreads upward from the bottom and not only downward from the top.

Social theory must therefore accept a broader concept of law than that which Marx and Weber adopted. Law is, as they believed, an instrument of domination, a means of effectuating the will of the lawmaker. But this theory of law, usually identified with the positivist school of jurisprudence, tells only part of the story. Law is also an expression of moral standards as understood by human reason. This view of law, which is associated with natural-law theory, is also partly true. Finally, law is an outgrowth of custom, a product of the historically rooted values and norms of the community. This third view, identified with the historical school of legal philosophy, can also claim -- like each of the other two schools -- one-third of the truth.

By combining all three perspectives it may be possible to give better answers than Marx and Weber gave to the questions that they posed. Law is, in part, an instrument of class rule and an ideological reflection of the ruling class's interests. In every legal system examples may be found to illustrate that. But that is not all. Law in the West has also been a protection against the arbitrary power of the ruling class, and much in it that is derived from reason and morals, as well as much in it that is derived from earlier periods of history, does not necessarily reflect the interests of the ruling class.

Similarly, to say that Western law prior to the sixteenth century was an ideological reflection of feudalism is to point to only one aspect of that law. Other aspects -- for example, the law of commercial credits to finance the wool trade or the spice trade in the thirteenth and fourteenth centuries --were a reflection of capitalism. Much of the law of the guilds was socialist in nature. A large part of the canon law of crimes, with its

556- strong emphasis on retribution in the sense of vindication of the law, seems equally appropriate to any social_economic system.

Likewise, it is a serious oversimplification to categorize modern Western legal systems as ideological reflections of capitalism. Much modern law is more feudal in character than capitalist. Much defies any characterization in socioeconomic terms. A more complex system of categorization and characterization is needed, which will draw not only on types of economic and political formations but also on philosophical, religious, and other kinds of criteria.

To the question whether law is to be viewed as part of the material base or as part of the ideological superstructure, the answer is once again that in the West law is both -- which is to say that Western law shows that the dichotomy itself is wrong. Law is as much a part of the mode of production of a society as farmland or machinery; the farmland or machinery is nothing unless it operates, and law is an integral part of its operation. Crops are not sown and harvested without duties and rights of work and of exchange. Machinery is not produced, moved from the producer to the user, and used, and the costs and benefits of its use are not valued, without some kind of legal ordering of these activities. Such legal ordering is itself a form of capital. Marx distinguished property as economic power from property as legal right, making the former a cause and the latter an effect, but this distinction rarely occurs in socialeconomic reality; generally, these are two interlocking ways of referring to the same thing.

Yet this is not to say that law is only social-economic fact, or that legal right is only another way of saying economic power. Law is not only fact; it is also idea, or concept, and, in addition, it is a measure of value. It has, inevitably, an intellectual and a moral dimension. Unlike purely intellectual and moral standards, law is required to be practiced, but unlike purely material conditions it consists of ideas and values. Moreover, the ideas and values of law are supposed to have a certain degree of consistency with one another -- and also with the nonlegal ideas and values of the community, that is, with its ideology as a whole.

The fact that law is, in its very nature, both material and ideological is connected with the fact that law both grows upward out of the structures and customs of the whole society and moves downward from the policies and values of the rulers of the society. Law helps to integrate the two. Thus theoretically at least, a conflict between social-economic conditions and political-moral ideology, which Marx saw as the primary cause of revolution, may be resolved by law. It was partly in order to avoid that -- for him, unwelcome -- theoretical result that Marx reduced law to ideology.

Finally, law in the West -- ever since the Papal Revolution -- has had a strong diachronic element, and more than that, a strong element of

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tradition. Tradition is more than historical continuity. A tradition is a blend of conscious and unconscious elements. In Octavio Paz's words, "It is a society's visible side___________________________________________________ institutions,

monuments, works, things,____ but it is especially its submerged, invisible side: beliefs, desires, fears,

repressions, dreams." Law is usually associated with the visible side, with works; but a study of the history of Western law, and especially its origins, reveals its rootedness in the deepest beliefs and emotions of a people. Without the fear of purgatory and the hope of the Last Judgment, the Western legal tradition could not have come into being.

It was also Octavio Paz who said, "Every time a society finds itself in crisis it instinctively turns its eyes towards its origins and looks there for a sign." ³²