Law and History

To follow the story of the Western legal tradition, and to accept it, is to confront implicit theories both of law and of history that are no longer widely accepted, at least in the universities.

The conventional concept of law as a body of rules derived from statutes and court decisions -- reflecting a theory of the ultimate source of law in the will of the lawmaker ("the state") -- is wholly inadequate to support a study of a transnational legal culture. To speak of the Western legal tradition is to postulate a concept of law, not as a body of rules, but as a process, an enterprise, in which rules have meaning only in the context of institutions and procedures, values, and ways of thought. From this broader perspective the sources of law include not only the will of the lawmaker but also the reason and conscience of the community and its customs and usages. This is not the prevailing view of law. But it is by no means unorthodox: it used to be said, and not long ago, that there are four sources of law: legislation, precedent, equity, and custom. 7In the formative era of the Western legal tradition there was not nearly so much legislation or so much precedent as there came to be in later centuries. The bulk of law was derived from custom, which was viewed in the light of equity (defined as reason and conscience). It is necessary to recognize that custom and equity are as much law as statutes and decisions, if the story of the Western legal tradition is to be followed and accepted.

Beyond that, it is necessary to recognize that law in the West is formed into integrated legal systems, in each of which the various constituent elements take their meaning partly from the system as a whole. Further, each system is conceived to be a developing one; therefore, the meaning of each constituent element is derived not only from what the system has been in the past but also from what it is coming to be in the future.

11- eleventh and twelfth centuries, constituted the first modern Western legal system has been generally overlooked, perhaps just because it does not fit in with the prevailing theories of the nature of law.

If analytical jurisprudence, or, as it is now more often called, legal positivism, is an inadequate theoretical basis for grasping the narrative of the development of Western legal institutions, what theory or theories would provide a better basis? The chief alternatives presented by Western legal philosophy itself are "natural-law theory" and "historical jurisprudence." In addition, in recent times a new school called "sociological jurisprudence" has come to the fore. All of these schools have, of course, many variants. Yet each theory, taken by itself, focuses on only one aspect of the truth. None of them, standing alone, offers a basis for understanding the history of law in the West. The story of the Western legal tradition is itself, in part, a story of the emergence and clash of these various schools of legal philosophy. They do not explain history; it is history that explains them-why they emerged, and why different schools have prevailed in different places at different times.

In the formative era of the Western legal tradition, natural-law theory predominated. It was generally believed that human law derived ultimately from, and was to be tested ultimately by, reason and conscience. According not only to the legal philosophy of the time but also to positive law itself, any positive law, whether enacted or customary, had to conform to natural law, or else it would lack validity as law and could be disregarded. This theory had a basis in Christian theology as well as in Aristotelian philosophy. But it also had a basis in the history of the struggle between ecclesiastical and secular authorities, and in the politics of pluralism. One may compare it with the theory that accompanies the law of the United States, under which any positive law must conform to the constitutional requirements of "due process," "equal protection," "freedom," "Privacy," and the like, or lose its validity. "Due process of law" is, in fact, a fourteenth-century English phrase meaning natural law. Thus natural-law theory is written into the positive law of the United States. This does not, however, prevent one from giving a political ("positivist") explanation of it. It is easy enough to show that the state, or the powers that be, or the ruling class, benefits from the due process clause and "wills" it to be.

Similarly, historical jurisprudence -- the theory that law derives its meaning and authority from the past history of the people whose law it is, from their customs, from the genius of their institutions, from their historic values, from precedents -- has been built into the English legal system since the English Revolution of the seventeenth century; yet English legal philosophy has swung between positivism and natural-law theory, and historical jurisprudence has had relatively few adherents, at least in the twentieth century. It is Germany-which in contrast to

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England created its national law, especially in the nineteenth century, not so much out of its own historic legal institutions as out of a received "alien" Roman law___________________________________________________ that has been the homeland of

historical jurisprudence, in whose name the greatest German jurists have sung praises to German law as a reflection of the spirit of the German people.

Thus Western legal history has been the breeding ground of a variety of schools of legal philosophy, some of which have been dominant in some times and places and others in others, often for paradoxical reasons-as if in ideological reaction against the existing legal realities. Students of Western legal history must therefore guard against the limitations of each of the individual schools. It would be more appropriate, and more "Western," to use all of them as screens to be placed successively over historical experience rather than to attempt to use history as a buttress for any one of them.

If various schools of legal theory pose obstacles to an understanding or acceptance of the story of the Western legal tradition, far greater obstacles are posed by various theories of history, including legal history. These theories deal with such questions as whether history has a meaning, or direction; whether periodization of history is justified, and if so, on what basis; whether one can speak of "laws of history," or of historical causation in any sense (for example, economic base and ideological superstructure, or primacy of power); and on a somewhat lower level of generalization, with questions concerning the relationship of the history of each individual nation to the history of the West as a whole; the role of the great revolutions in Western history; and the meaning of concepts such as "medieval" and "modern," "feudalism" and "capitalism."

Although the story of the origin and early development of the Western legal tradition can be told without attempting to resolve these large historiographical issues, it is necessary to deal briefly with several theoretical questions concerning history in general and Western history in particular in order to dispel common preconceptions about them. Moreover, the story itself illuminates some of these theoretical questions in a remarkable way.

Questions of meaning and direction in history and related questions of periodization arise inevitably from the dramatic circumstances in which the Western legal tradition came into being.

-13- same events and facts less meaning, less direction, and a less strict periodization. If all periodization is arbitrary, then an analysis of the emergence of "modern" legal and political institutions in the "late eleventh century" is no more arbitrary than the conventional analysis which insists that everything before the "sixteenth century" is "medieval" and that there was no radical discontinuity in the period from 1050 to 1150 or 1200. Similarly, people who believe that there are no patterns in the historical development of institutions in the West should be no more dismayed by an account whic h sees an interaction between revolution and evolution over generations and centuries than they are by accounts that see only revolution or only evolution.

Those who will have most difficulty with the story told here are those who have never directly confronted the problems of meaning and direction and periodization but who uncritically accept the conventional historiography that has been generally taught since the sixteenth century. This view simply assumes that Western history is divided into three periods: ancient, medieval, and modern. Ancient history is the history of Greece and Rome. The decline of Rome, due to the barbarian invasions, produced a medieval age, which lasted roughly from the fifth to the fifteenth century. Then modern times began -- some would say with the Renaissance, others would say with the Reformation, still others would say with both.

This conception of the past has a great deal of meaning, a great deal of direction, a great deal of periodization. It is, however, quite inconsistent with the best historical research of the last five decades. That research has pushed the "dark ages" back from the period before 1450-1500 to the period before 1050-1100. Even the most conservative historians now distinguish sharply between the Low Middle Ages and the High Middle Ages. Further, the previously postulated continuity of the history of the Germanic peoples in the Low Middle Ages with the history of the Roman Empire, and with Roman and Greek history generally, has been largely discounted. The large-scale revival of Greek philosophy and Roman law in the late eleventh, twelfth, and thirteenth centuries has been shown to be part of a critical turning point in both the history of the

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Western church and the history of the European nations, and to have been connected also with the rise of European cities and with other basic social and economic changes.

Here, whatever the proof, many people will experience doubt and frustration. Perhaps they will say to themselves: "Patterns, regularities, in history may be necessary -- though they do go beyond the facts -­since without them there would be no history. But radical discontinuities are unnecessary, and even unnatural. 'Nature does not make leaps.' But even if Western history has sometimes made leaps, as in the Russian Revolution, the French Revolution, and the Protestant Reformation, still, to say that a radical discontinuity occurred in the very middle of the 'Middle Ages'seems not only unnatural but also unfamiliar. It seems incongruous in view of what we have been taught about the Age of Faith. Why may we not continue to believe that the differences between European society in the year 1500 and in the year 500 resulted from a long series of small incremental changes, with some periods of greater acceleration but without any dramatic changes in a single generation or a single century? Why not continue to believe that the cities were founded (or revived) gradually over ten, or five, or at least three centuries, rather than suddenly over eighty or ninety years; that the pope became supreme judge and legislator in the church gradually over ten centuries, rather than suddenly over three generations; that the emperor and kings of Europe gradually lost their sacral functions and their thaumaturgical character, not as the result of open political and religious conflict but as the result of incremental shifts in attitudes?"

A study of the origins of the Western legal tradition should correct this ideological bias in favor of incremental change. Since law changes more slowly than most other political institutions, one would not usually expect rapid and dramatic changes in a legal system. Nevertheless, one who investigates any of the legal systems of Europe first in the period of 1000-1050 and then in the period 1150-1200 finds a tremendous transformation. This is true, above all, of the law of the church.

To speak of revolutionary change within the Church of Rome is, of course, to challenge the orthodox (though not the Eastern Orthodox) view that the structure of the Roman Catholic church is the result of a gradual elaboration of elements that had been present from very early times. This was, indeed, the official view of the Catholic Reformers of the late eleventh and early twelfth centuries: they were only going back, they said, to an earlier tradition that had been betrayed by their immediate predecessors. The myth of a return to an earlier time is, in fact, the hallmark of all the European revolutions. Luther also preached a return to early Christianity following its betrayal by the papacy. The English Puritans under Cromwell preached a restoration of "ancient English liberties" after one hundred and fifty years of Tudor despotism. The

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French Revolution went back to classical antiquity and a state of nature to combat feudalism and aristocratic privilege. The Russian Bolsheviks preached a return to the classless society of primitive tribes before the dawn of property.

A radical transformation of a legal system is, however, a paradoxical thing, since one of the fundamental purposes of law is to provide stability and continuity. Moreover, law -- in all societies -­derives its authority from something outside itself, and if a legal system undergoes rapid change, then questions are inevitably raised concerning the legitimacy of the sources of its authority. In law, large- scale sudden change -- revolutionary change -- is, indeed, "unnatural." When it happens, something must be done to prevent it from happening again. The new law must be firmly established; it must be protected against the danger of another discontinuity. Further changes must be confined to incremental changes.

This, at least, has been the course of Western legal development in the wake of the large-scale revolutionary transformations that have periodically overtaken it, starting with that of the late eleventh and early twelfth centuries. A historical dimension has been given to the new legal system established by the revolution. In the first place, the new legal system is considered to be rooted historically in the events that produced it. In the second place, it is considered to have changed not only in response to new circumstances but also according to some historical pattern. The law is considered to be a historical phenomenon; it is considered to have what might be called historicity. It must not only evolve but also must be seen to evolve.

Nevertheless, the historicity of Western law has not prevented the periodic outbreak of violent revolutions that have, to be sure, eventually returned to the historical legal tradition but that have at the same time transformed it and sent it in new directions.

The historicity of law in the West is not to be confused with historicism, in the sense of bondage to the "blind power" (in Nietzsche's phrase) of the past. Not only the adherent of the historical school of legal philosophy but also the positivist and the natural-law theorist, or, for that matter, the cynic who believes that law is simply the will of the stronger -- all these are confronting legal institutions and procedures, legal values, and legal concepts and rules that have, in fact, a historical dimension. They derive their meaning in part from their history. It is never enough, in any Western legal system, to attempt to interpret or explain a legal rule (or concept or value or institution) solely by appeal to logic or policy or fairness; it must also be interpreted and explained in part by appeal to the circumstances that brought it into being and by the course of events that have influenced it over time. The dogmatic method, the political method, and the method of equity are always subject to supplementation

-16- by the historical method of interpretation. The plurality of the sources of law thus protect historicity and at the same time help to prevent blind historicism.

Blind historicism is also frustrated by the plurality of overlapping histories which constitute Western civilization. It is not "the past" in any monolithic sense that constitutes the historical dimension of law but rather the past times of the various communities in which each person lives and of the various legal systems that those communities have produced. It is only when the different legal regimes of all these communities-local, regional, national, ethnic, professional, polititical, intellectual, spiritual, and others -- are swallowed up in the law of the nation-state that "history" becomes tyrannical.

This is, in fact, the greatest danger inherent in contemporary nationalism. The nations of Europe, which originated in their interaction with one another in the context of Western Christendom, became more and more detached from one another in the nineteenth century. With World War I, they broke apart violently and destroyed the common bonds that had previously held them together, however loosely. And in the late twentieth century we still suffer from the nationalist historiography that originated in the nineteenth century and that supported the disintegration of a common Western legal heritage.

The emergence in the nineteenth century of so-called scientific history, that is, of systematic and painstaking research into the facts, intended to show, in Ranke's famous phrase, wie es eigentlich gewesen ist ("how it actually was"), coincided with the emergence of the most intense nationalism that Europe had yet experienced. It was simply assumed that history meant national history. History was to be objective, but it was to be the history of the nation. In the twentieth century there has been some change in this respect. The social and economic historians were among the first to break the nationalist barrier and to write about the West as a whole. After World War I this approach was extended by some persons to political history. Even European legal history came to be treated in transnational terms, although English and American legal history remained peculiarly isolated.

It is unfortunate that hardly any attempt has been made to integrate English and American legal history into the panorama of Western legal systems. Such an integration has been made extremely difficult by the insularity of English and American legal historians, who, in addition, have carved up the subject matter of their respective disciplines in such a way as to mystify the stranger who might otherwise wish to intrude. Even for the period in which all the nations of the West, including England, were within the Roman Catholic Church and not only lived under the same system of ecclesiastical law but also had the closest intellectual, cultural and political ties with one another, English law is still

17- treated by many legal historians as though it were outside of European history. These historians are able to sustain their nationalist orientation by concentrating on the so_called common law, that is, the law applied in the royal courts of Common Pleas and King's Bench, and by ignoring the other bodie s of law and other jurisdictions that existed in England at the same time. But even the English common law, in this narrow sense, was similar in many ways to the royal or ducal law of Sicily, France, the German duchies, and other countries of Europe.

Edmund Burke once said, "The laws of all the nations of Europe are derived from the same sources." For him, England was part of Europe. By the time legal history had become a matter of scientific inquiry, however, England's historical links with the Continent had been cut. This led to an exaggerated emphasis upon those legal institutions, values, concepts, and rules that distinguish English law from other Western legal systems. Now that England has joined the European Economic Community, a revision of English legal history may occur that will emphasize those legal institutions, procedures, values, concepts, and rules that English law shares with other Western legal systems.

In 1888, in his Inaugural Lecture as Downing Professor at Cambridge University, Maitland raised the question "why the history of English law is not written." His answer was, first, "because of the traditional isolation of the study of English law from every other study," and second, because "history involves comparison and the English lawyer who knew nothing and cared nothing for any system but his own hardly came in sight of the idea of legal history." "One of the causes why so little has been done for our medieval law," he added, "is, I feel sure, our very complete and traditional consecrated ignorance of French and German law. English lawyers have for the last six centuries exaggerated the uniqueness of our legal history... I know just enough to say this with confidence, that there are great masses of medieval law very comparable with our own." 8_