Penitential Law and Its Relation to the Folklaw

Deeper insight into the nature of the legal order which prevailed in Europe prior to the late eleventh century may be gained by examining

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more closely the system of penances introduced by the Western Church, or rather, the churches, for despite the great prestige of the Bishop of Rome as primus inter pares ("first among equals"), there was as yet no separate, corporate, organized Roman Catholic Church in the West, no unified legal entity, but rather an invisible spiritual community of individual bishoprics, local churches, and monasteries subordinate to tribal and territorial and feudal units as well as to kings and emperor.

The system of penances originated in the monasteries. Each monastic community had its own miniature legal order, its own "rule" of work and prayer and of administration and discipline. Each was independent, subject only to the ultimate control of the bishop of the diocese. Starting in the sixth century, various leading abbots wrote collections of rules, called "penitentials," assigning specific penances for various sins. ⁴³At first, varying numbers of strokes or blows were assigned for various forms of misconduct; in time physical sanctions became more diversified and non-physical sanctions were added. The usual penance came to be fasting at certain times, to which there were added alms, good works, and compensation of victims. Thus Christian monasticism, without denouncing the old communal methods of dispute resolution and punishment, offered its own procedures, which were more concerned with the care of souls than with the appeasement of vengeance.

Soon penitentials came to be written not only for the discipline of monks but for the discipline of the whole Christian people. By the eleventh century there were scores of such penitentials circulating among the clergy of the peoples of the West.

The earliest sources of the Western penitentials are to be found in the practice of the church in the first centuries of the Christian era, both in the East and in the West, to require public penance for heinous sins. In the early centuries all penitents were required to present themselves at a certain time or times during the year to the bishop, who in a solemn and elaborate church ceremony sentenced them, according to the gravity of their sins, to varying terms of fasting and deprivation of the sacraments. For example, the fourth-century Canonical Letters of Basil the Great listed various penances for various sexual or marital offenses, such as rape, adultery, second marriage ("digamy"), and incest; for religious offenses such as magic, idolatry, and violation of graves; and for what at a much later period would be called secular offenses, such as homicide of various kinds, theft, perjury, abortion, and infanticide. The sacrament

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of penance was supposed to effectuate a permanent reconciliation with God and neighbor. Therefore there was only one penance, just as there was only one baptism; as a result, penance came generally to be postponed until the end of life. 44

The practice of public penance survived only fitfully in the West after the fifth century. Under Celtic influence it was largely replaced by private penance, which could be repeated at will, with secret confession by each individual to a priest and secret imposition of the duty to perform penitential acts.

The penitentials established no trial procedure, although in time they came to indicate the types of questioning that priests should use. The procedure was that of the confessional. Penances were applicable to sins which were confessed to a priest. Typically, the confession was informal and private, and the priest was under a sacred duty not to divulge it. However, in some penitentials (especially Frankish penitentials of the ninth and tenth centuries, which opposed the Celtic tradition in this respect), public penance was preserved for notorious sin. ⁴⁶ But whether public or private, the penitential system rested ultimately on the consent of the individual offender to confess and to do penance -- and, of course, on the strong social pressure of the community which evoked such consent. Although the penitentials usually stated the penance for a given sin in terms of a certain number of days, months, or years of fasting, they also provided for a great variety of alternative types of atonement.

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in cases of necessity. For example, if a person was too ill to fast he might be permitted to substitute a certain number of readings of psalms. Eventually, commutation into monetary payments was introduced, after the fashion of the folklaw, and the payments could be made by kinfolk in exceptional cases. This led to various forms of penance by proxy, including vicarious penance by priests through singing of masses in behalf of the sinner. Commutation of long sentences of fasting and prayer sometimes took bizarre forms, such as sleeping in water, on nutshells, or with a dead b ody in the grave, or reciting a psalm seven times while standing with arms extended like a cross (called "honest cross_vigil").

Modern historians of the canon law have charged that such devices reduced repentance and grace to "an artificial formality." It is important to recognize, however, that the system of penances did not have the same significance in the Germanic era that it acquired later. For one thing, money payments for offenses and group atonement were central features of Germanic law. For another, prior to the late eleventh century penitential discipline had not become a scientific system of rules and procedures. The absolute duty to confess before taking the sacrament of holy communion had not been established. The sacraments in general had not yet been legalized. The penitential system left great leeway for variations of method, and even of principle, among the various bishoprics and monasteries and even, possibly, the parishes.

The basic conception of the penitentials was that penance was medicine for the soul. Thus the Penitential of Burchard of Worms, about 1010 A.D., opens with the following words: "This book is called 'the Corrector' and 'the Physician,' since it contains ample corrections for bodies and medicines for souls and teaches every priest, even the uneducated, how he shall be able to bring help to each person, ordained or unordained; poor or rich; boy, youth, or mature man; decrepit, healthy, or infirm; of every age; and of both sexes." ⁴⁹ The idea of punishment was subordinated to the idea of cure; and cure was envisioned as the establishment of a right relationship to God, that is, to life as a whole, including the life of the world to come. The ultimate penance was excommunication, which signified deprivation of the right to participate in the sacraments of the church (including communion, marriage, burial, and others); this purported to cut off -- temporarily -- the relationship

-71- of the sinner to God and to the church until by faith and works he had prepared himself for reconciliation. It was an extreme measure, which had an effect similar to outlawry, since curses were heaped not only on the offender but also, prospectively, on anyone who came to his assistance. For the most part, the penances were more subtle. There was a general theory, which derived from medical concepts of the time, that "contraries are cured by their contraries." "The duty of a physician is to cool what is hot, to warm what is cold, to dry what is moist, and to moisten what is

dry." 50 This found reflection, for example, in the provision of the Penitential of Columban that "the talkative person is to be sentenced to silence, the disturber to gentleness, the gluttonous to fasting, th e sleepy fellow to watchfulness." 51 For the shedding of blood, renunciation of weapons was normally required; for unchastity, abstention from marital intercourse.

Yet a wide variety of variations and substitutions were permitted, depending on the individual offender. As the preface of the Penitential ascribed to Bede states:

For not all are to be weighted in one and the same balance, although they be associated in one fault, but there shall be discrimination for each of these, that is: between rich and poor; freeman, slave; little child, boy, youth, young man, old man; stupid, intelligent; layman, cleric, monk; bishop, presbyter, deacon, subdeacon, reader, ordained or unordained; married or unmarried; pilgrim, virgin, canoness, or nuns; the weak, the sick, the well. He shall make a distinction for the character of the sins or of the men; a continent person or one who is incontinent, wilfully or by accident; [whether the sin is committed] in public or in secret; with what degree of compunction [the culprit] makes amends by necessity or by intention; the place and times [of offences]. 52_

"In this way," Bishop Mortimer states, "casuistry and moral theology found their way into canon law."

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The law of penance, codified in the penitentials, contrasted sharply in many respects with the folklaw as it had developed since pre-Christian times. The folklaw was concerned primarily with the control of the blood feud; the penitential law of the church was concerned primarily with the care of souls. The folklaw based its sanctions for harm principally on the extent of harm; the penitential law of the church based its sanctions for harm principally on the character and degree of the offense. The folklaw rested fundamentally on concepts of honor and fate; the penitential law of the church rested fundamentally on concepts of repentance and forgiveness. The folklaw was directed primarily toward the repression or forestalling of violent conflict within the tribal, local, and lordship community; the penitential law of the church was directed pri- -72- marily toward the preservation of the spiritual welfare of the community of the faithful and the preparation of their individual souls for eternal life.

Yet despite these contrasts, the penitential law and the folklaw belonged to the same culture. All major "secular" offenses -- homicide, robbery, and the like -- were also sins to be atoned for by penance; and all major "ecclesiastical" offenses -- sexual and marital sins, witchcraft and magic, breaking of vows by monks, and the like -- were also crimes prohibited by the folklaw and subject to secular sanctioning. Indeed, the "secular" authorities who administered the criminal law were in fact largely the clergy. One cannot speak, therefore, of a separation of secular and spiritual law, or of secular and ecclesiastical law, in this period of Western history. The folklaw and the penitential law covered the same ground, so to speak. Of course, they covered it in different ways. The writings of the time, from the sixth to the early eleventh centuries, referred to the two ways in terms of "worldly law," or "man's law," on the one hand, and "God's law," on the other. But what are called today the state and the church were both equally concerned with each kind of law. A good illustration of this may be found in a provision of the laws of the Anglo-Saxon King Ethelred: "And he who henceforth in any way violates right laws of God or man, let him expiate zealously... as well through divine penance as through worldly correction." ⁵⁴ Thus the penitential laws were enforced by the king and declared by him to be applicable to all offenses, whether against God or man. Another illustration may be found in the address of one of the Missi Dominici sent out by Charlemagne to check on local administration. "We have been sent here," he begins, "by our Lord, the Emperor Charles, for your eternal salvation, and we charge you to live virtuously according to the law of God, and justly according to the law of the world." ⁵⁵ Frankish and Anglo-Saxon kings often issued laws requiring ecclesiastical penances to be enforced against violators of worldly law.

The folklaw, having only weak means of enforcement, needed the support of the penitential law in order to maintain its own sanctity, and especially to maintain the sanctity of the oaths on which the folklaw came to rest. Beyond that, the penitential law reinforced the folklaw's emphasis on negotiated settlement, and strongly encouraged the "trust" side of the "trust-mistrust" syndrome. The penitentials appropriated the Germanic word for compensation (in Anglo-Saxon, bot) as the word for penance. Bot was paid for injury to God; sometimes it was called godbot in the Anglo-Saxon penitentials and also in Anglo-Saxon law generally, and sometimes just bot. The verb form, gebete, meant "repent of," "expiate," "atone for." The bot imposed by priests for sins against God had elements of atonement and expiation as well as of restitution. The offer of a reasonable bot to the victim or his kinfolk was thus an offer

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of reconciliation which he or they had to respect. Also it was an offer which the sinner was required to make and the victim or kinfolk to accept________________________________________ not by the folklaw but by divine law. It is

not surprising that the folklaw bot became permeated with concepts of atonement and reconciliation drawn from the penitential bot. As late as the second decade of the twelfth centu ry, a manual called Laws of Henry the First ( Leges Henrici Primi) repeatedly emphasized that Englis h law preferred friendly settlement to litigation, amor or amicitia to judicium. This was a time when the old system of folklaw was being challenged by new ideas of legality. The unknown author, who was probably an ecclesiastic in the court of the English king, followed the tradition of the penitentials when he wrote: "All causes are... preferably to be settled by friendly concord [pax]." "Those whom the county court finds in dispute with each other it shall bring together in friendly agreement [amor] or it shall let a judgment stand in settlement between them." "But if an oath of reconciliation [juramentum

pacationis] is demanded, the offender shall swear... that if the accuser were in the same position... he would accept the offer of compensation or renounce any amends." "If anyone makes amends to another for his misdeed... and afterwards for the purpose of effecting a friendly accord [amicitia] with him offers him something along with an oath of reconciliation [pacis], it is commendable of him to whom the offer is made if he give back the whole thing and not retain any suggestion of the affront [contumelie] to himself." "Where any of them has the choice... of amicable agreement... this shall be as binding as a legal decision [judicium ] itself." "Concerning disputes between neighbours... they shall meet at the boundary court of their lands, and the person who makes the complaint first shall have justice first. If a dispute ought to be taken elsewhere, they shall proceed to the court of their lord... and in his court friendly agreement shall bring them together [eos amicitia congreget] or a formal judgment shall stand between them [sequestret judicium]; if the situation be otherwise they shall proceed to their hundred court if n eed be." "For it is a rule of law that a person who unwittingly commits a wrong shall consciou sly make amends. He ought, however, to be the more accorded mercy and compassion at the hands of the dead man's relatives the more we

understand that the human race grows sick with the harshnesses of a cruel fortune and with the melancholy and wretched lamentation of all." 56

More than a century before the Leges Henrici Primi a code of Ethelred had stated: "Where a thegn has two choices, love or law" -- that is, composition or judgment -- "and he chooses love, it shall be as binding as judgment." ⁵⁷ Doris M. Stenton writes that the importance of this statement, which reappears in Latin in the Leges Henrici Primi, lies in the fact that a judicial decision is "likely to leave one party dissatisfied and in

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mind to make trouble." She goes on to note that, in records of AngloSaxon lawsuits of the tenth and eleventh centuries, "it is remarkable how often a party who has been completely successful in the pleadings comes at last to a compromise leaving his opponent possessed for life of the land at issue." 58 What Lady Stenton writes of AngloSaxon law is confirmed by reports of Frankish and other European cases of the time. As Stephen White states, disputes both in England and on the Continent in the tenth and eleventh centuries were often concluded by formal compromises symbolized by the exchange of gifts, which were clearly tokens offriendship and mutual trust; he adds that such formal settlements were often reached through the good offices of mediators, sometimes referred to as "friends and neighbors." 59

One should not, however, exaggerate the influence of the penitentials, or of the church's law of penance, on the folklaw in the period from the sixth to the tenth centuries. The Christian division between God's law and the world's law certainly encouraged and supported some of the softer tendencies of the world's law, and especially what Max Gluckman, referring to contemporary primitive societies, has called "the peace within the feud." ⁶⁰ But Christianity did not, in those centuries, alter the Germanic folklaw in its fundamental structure. It could not do so, if only because the church as an institution -- outside the monasteries -- was wholly integrated into Germanic society. Viewed in the abstract, the conflict between the Christian world view and the Germanic was incredibly sharp: caritas against honor, mercy against fate, a peaceful and harmonious natural order against a natural order haunted by demonic forces, eternal salvation against sacred temporal values associated with kinship and kingship. But the conflict in world views was not carried over into social action. With regard to social institutions, Christianity at that time took -- for the most part -- an essentially passive position. Even after the development under Charlemagne of the concept of the king as ruler of the "Christian empire," pagan social institutions continued to prevail. The kingship, Wallace-Hadrill writes, "has been transformed into an office with duties and rights defined by churchmen... Should we now call kingship Christian rather than Germanic? I think that it is still Germanic; warfare still holds a prime place in western society: it is still a way of life as much as a means of survival or expansion." 61Similarly, with regard to criminal law, property law, and even matrimonial law, the ties of kinship continued to predominate and to be enforced ultimately by blood feud and composition. The church preached marriage by consent of the spouses, but many parents continued to have their offspring married in childhood. The church desacralized nature and made it a sin to practice magic or to be superstitious, but Germanic man continued to believe in demons and powers in rocks and trees and to

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practice his magic and superstitions, and indeed the church eventually assimilated many of the pagan supersititions and - especially in the law - clothed them with Christian formulae and rituals.

Viewed from the perspective of the year 1100 or 1150, the folklaw of the peoples of northern and western Europe in the year 1000 appears quite primitive. In 1000 there was no professional legal scholarship. There was no class of trained lawyers to act as judges, advocates, or advisers in ecclesiastical, royal, city, manorial, mercantile, or other courts. There was no concept of law as a body of principles, a corpus juris, in which diverse and contradictory customs and laws were reconciled. There were no textbooks on law and no professors to gloss them. There was no concept of law as an object of study distinct from theology and philosophy; indeed, theology and philosophy were themselves not yet conceived as distinct scholarly disciplines.

Moreover, seen from the perspective of the twelfth century, the institutions of legislation and adjudication of the peoples of northern and western Europe in the year 1000 were very rudimentary. Although kings issued laws, they did so only rarely, and largely in order to reaffirm or revise preexisting customs. The lawmaking authority of popes, metropolitans, and bishops was also largely restricted to occasional reaffirmance or revision of preexisting rules laid down in Scripture or by the church fathers or by church councils. There was no idea that royal or ecclesiastical authorities had the task of systematically developing a body of statutory law. The so-called codes, whether of worldly law or of God's law, were incomplete collections of specific customs, or specific rules, elliptical in character, without definitions of principles or concepts. Similarly with regard to adjudication, there were no professional courts, that is, courts staffed with professional judges, and no idea that cases should be decided according to a developed system of general principles. There were, of course, established rules and procedures for punishing offenses, for compensating for harm, for enforcing agreements, for distributing property on death, and for dealing with many other problems related to justice. Each of the peoples of Europe had its own rather complex legal order. But none had a legal system, in the sense of a consciously articulated and systematized structure of legal institutions clearly differentiated from other social institutions and cultivated by a corps of persons specially trained for that task.

Not only the style of the early European folklaw but also its content seems primitive by the standards of the Western legal tradition as it has developed since the eleventh and twelfth centuries-and indeed it was expressly condemned as barbaric by the later jurists. In the twelfth century and thereafter, the earlier "magical-mechanical" modes of proof by ordeal and compurgation and battle were finally denounced and re- -76-

placed. Kinship responsibility and self-enforcing local and feudal customs gave way to more "rational" standards of procedural and substantive law. The church's law of penance, as manifested in the penitentials of the sixth to tenth centuries, also seemed primitive to the canon lawyers of the eleventh and twelfth centuries, and they subjected it to far-reaching changes.

Yet if a different and broader perspective is adopted -- not the perspective of the Western legal tradition as it later developed, but the perspective of the legal concepts and legal institutions of non­Western cultures -- the negative features of the earlier folklaw are less striking than its positive features.

As in many non-Western cultures, the basic law of the peoples of Europe from the sixth to the tenth centuries was not a body of' rules imposed from on high but was rather an integral part of the common consciousness, the "common conscience," of the community. The people themselves, in

their public assemblies, legislated and judged; and when kings asserted their authority over the law it was chiefly to guide the custom and the legal consciousness of the people, not to remake it. The bonds of kinship, of lordship units, and of territorial communities were the law. If those bonds were violated, the initial response was to seek vengeance, but vengeance was supposed to give way -- and usually did -- to negotiation for pecuniary sanctions and to reconciliation. Adjudication was often a stage in the reconciliation process. And so peace, once disrupted, was to be restored ultimately by diplomacy. Beyond the question of right and wrong was the question of reconciliation of the warring factions. The same can be said also of the law of many contemporary so-called primitive societies of Africa, Asia, and South America, as well as of many ancient civilizations of both the past and the present.

Before the professionalization and systematization of law, more scope was left for people's attitudes and beliefs and for their unconscious ideas, their processes of mythical thought. This gave rise to legal procedures which depended heavily on ritual and symbol and which in that sense were highly technical, but by the same token the substantive law was plastic and largely nontechnical. Rights and duties were not bound to the letter of legal texts but instead were a reflection of community values, a living law which sprang, in Fritz Kern's words, "out of the creative wells of the sub-conscious." Kern recognized that the customary law of this early period of European history was often "vague, confused, and impractical, technically clumsy," but that it was also "creative, sublime, and suited to human needs." ⁶² These characterizations, too, are applicable to the legal concepts and processes of many contemporary nonliterate cultures of Africa, Asia, and South America, as well as to complex, literate, ancient civilizations such as those of China, Japan, and India.

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Thus many characteristics of the Germanic folklaw that to Western eyes appear to be weaknesses may to non_Western eyes appear to be strengths. The absence of law reform movements, of sophisticated legal machinery, of a strong central lawmaking authority, of a strong central judicial authority, of a body of law independent of religious beliefs and emotions, of a systematic legal science __ are only one side of the coin. The other side is the presence of a sense of the wholeness of life, of the interrelatedness of law with all other aspects of life, a sense that legal institutions and le gal processes as well as legal norms and legal decisions are all integrated in the harmony of the universe. Law, like art and myth and religion, and like language itself, was for the peoples of Europe, in the early stages of their history, not primarily a matter of making and applying rules in order to determine guilt and fix judgment, not an instrument to separate people from one another on the basis of a set of principles, but rather a matter of holding people together, a matter of reconciliation. Law was conceived primarily as a mediating process, a mode of communication, r ather than primarily as a process of rulemaking and decision_making.

In these respects, Germanic and other European folklaw had much in common with certain Eastern legal philosophies. In the Sufi tradition of the Middle East, one of the stories told of the Mulla Nasrudin depicts him as a magistrate hearing his first case. The plaintiff argues so persuasively that Nasrudin exclaims, "I believe you are right." The clerk of the court begs him to restrain himself, since the defendant is yet to be heard. Listening to the defendant's argument, Nasrudin is again so carried away that he cries out, "I believe you are right." The clerk of the court cannot allow this. "Your honor," he says, "they cannot both be right.""I believe you are right," Nasrudin replies. ⁶³ Both are right, yet both cannot be right. The answer is not to be found by asking the question, Who is right? The answer is to be found by saving the honor of both sides and thereby restoring the right relationship between them.

In the tradition of peoples of Asia who have lived under the strong influence of both Buddhist and Confucian thought, social control is not to be found primarily in the allocation of rights and duties through a system of general norms but rather in the maintaining of right relationships among family members, among families within lordship units, and among families and lordship units within local communities and under the emperor. Social harmony is more important than "giving to each his due." Indeed, "each" is not conceived as a being distinct from his society -- or from the universe -- but rather as an integral part of a system of social relationships subject to the Principle of Heaven. Therefore in the ancient civilizations of Asia the traditional, collective, and intuitive sides of life were emphasized, and the intellectual, analytical, and legal sides were fused with and subordinated to them. 64

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This was true also of the peoples of Europe before the great explosion of the late eleventh and early twelfth centuries. The folk myths which dominated their thought prior to (and after) the introduction of Christianity did not make a sharp division between magic and logic or between fate and the rule s of criminal law. Nor did Christianity - an Eastern religion - make a sharp division between faith and reason.

But is it possible to say that law exists in a society whose social order reflects an "Eastern" concept of the fusion, or harmony, of all aspects of social life? Does law exist, for example, among the Tiv of northern Nigeria, who have a system of social control which rests on clan and lineage loyalties, clan reprisals, and ritual reparation to avoid punishment by supernatural sources, but who have no distinct governmental institutions, no courts, and no word in their language for law? ⁶⁵ They accept certain rules as binding upon them, certain decisions as authoritative, and certain procedures for declaring these rules and decisions effective. Does the fact that they do not distinguish these procedures and decisions and rules from religion, politics, economics, and family life, and do not call them "law," mean that we should not call them law? May we not say that among the Tiv -- and in many other societies -­what we call law is wholly diffuse, wholly interwoven with religious, political, economic, family, and other social institutions and processes? A. S. Diamond, who defines law as rules of conduct whose breach is regularly met by sanctions imposed by the community through regular procedures, states categorically that "the Tiv have no law." For Diamond, with his Western orientation, "law in the full sense of that word" consists of "rules of conduct enforceable by an organ of the state"; this definition would also almost rule out Germanic law (including Anglo-Saxon and Frankish law), of which Diamond indeed says that it is only "near the beginnings of law." ⁶⁶

The paradigm of a social order in which law is largely diffuse, largely embedded in religious, political, economic, family, and other social institutions and processes-and the thesis that such a social order preceded, historically, the development of the legal systems of Western civilization -- was advanced more than a century ago in the writings of Sir Henry Maine. Maine wrote that the ancient Roman, Greek, and Hindu law codes, both in the East and the West, "mingled up religious, civil, and merely moral ordinances without any regard to differences in their essential character," and that "the severance of law from morality and religion from law belong only to the later stages of mental progress." ⁶⁷ To answer these statements, as Diamond does, by asserting that the early codes contain very little "religious matter," that they are "entirely secular," and that they "show no confusion between law and religion" begs the question of what is law and what is religion. ⁶⁸ Maine argued, in effect, that rules which might appear to a modern observer to be "en- -79

tirely secular"___ for example, that one who slays a freeman should pay 100 shillings wergeld and

one who slays a nobleman should pay 300 shillings wergeld______ were in fact wholly bound up with the

moral and religious rules of the society. It is not sufficient to say that such a rule is to be distinguished from modern legal rules only insofar as there was an absence of centralized go vernment or other specific "legal machinery" for enforcing it (as Dennis Lloyd has argued), 69 or that the mo de of enforcement of the rule (by ordeal or compurgation) was religious but the rule itself was secular (as Diamond would have it). 70 The important point is that the whole Germanic system of rules of pecuniary compensation for injuries was part of the paradigm of wyrd and lof, wer and bot, mund, frith, both, wed part of the system of fate and honor which fused law with religion,

politics, economics, clan and household loyalties. Diamond reduces his own argument to absurdity when he contends that much of the Hebrew law of the Old Testament is also "secular law," wholly distinct from religion. The Hebrews never recognized such a distinction and would have denounced it; for them every word of the Bible was sacred.

It is my contention that the folklaw of the peoples of Europe in the sixth to tenth centuries was merged with religion and morality, and yet it was law, a legal order, a legal dimension of social life; and further, that it makes sense to identify as a legal dimension of social life the shared sentiment of the members of any community -- even a family or neighborhood or school -- that they are bound by mutual rights and duties that derive from an authority recognized by them. As soon as a child invokes the principles of equality, consistency, and adherence to a promise or rule -- to argue, for example, that he has a right to a certain toy because his brother had it earlier and because they always take turns with it and because it is his and because his father said so-then it makes sense to speak of an appeal to Right or to Law. Such an argument may be discouraged by some systems of child rearing, especially those strongly influenced by the Confucian ethic. Yet the fact that the argument has to be discouraged is some evidence that it reflects a principle that is inherent in social ordering.

It is not that a family -- or a village -- governed by the Confucian ethic has no law, but rather that the legal dimension of its life is wholly subordinated to the nonlegal, the fa to the li. 71.It is not that the Tiv lack law, but that their legal rights and duties are wholly interwoven with religious and other institutions and values. And what links the folklaw of the Germanic peoples of Europe to these and other non­Western legal orders is the fact that the folklaw was subordinated to kinship and lordship and kingship loyalties and interwoven with the heroic struggle for honor in a universe ruled by fate.

If a single phrase can be used to describe what all these various legal

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Map 1. Western Europe circa 1050.

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orders have in common, it is the sanctity of custom. Custom is sacred and its norms are sacred. In Sophocles' words, "these laws are not for now or for yesterday, they are alive forever; and no one knows when they were shown to us first" (Antigone). In this type of legal order, law is not something that is consciously made and remade by central authorities; there may be occasional legislation, but for the most part law is something that grows out of the patterns and norms of behavior, the folkways and the mores, of the community. Moreover, in this type of legal order, custom is not subjected to conscious and systematic and continuous rational scrutiny by jurists. Custom is so sacred that it might not even be called sacred; it is simply unquestioningly and unquestionably respected.

Yet the Germanic folklaw does not fit easily into the model or archetype of Customary Law -- or, indeed, into any other model or archetype, including Archaic Law and primitive law-if only for the reason that it came under the influence of Christianity. The emergence of Christianity and its spread across Europe was a unique event, which cannot be explained by any general social theory. By contradicting the Germanic world view and splitting life into two realms, Christianity challenged the ultimate sanctity of custom, including the ultimate sanctity of kinship, lordship, and kingship relations. It also challenged the ultimate sanctity of nature -- of the water and fire of the ordeals, for example. It challenged their ultimate sanctity, however, without denying their sanctity altogether; on the contrary, the church actually supported the sacred institutions and values of the folk (including the ordeals). The church supported them and at the same time challenged them by setting up a higher alternative -- the realm of God, God's law, the life of the world to come. When life was split into two realms, the eternal and the temporal, the temporal was thereby depreciated in value but not otherwise directly affected. The split took place not in the life of society but in the human soul. Yet social life was indirectly affected in important ways. The basic structure of the folklaw remained unaltered, but many of its particular features were strongly influenced by Christian beliefs.

If all traces of Christianity could be subtracted from the Germanic folklaw, it might well fall into one or more of the archetypes of legal orders which have been offered by social theorists. It would fall squarely into Archaic Law, together with the Roman law in the time of the Twelve Tables, early Hindu law, and ancient Greek law. It would fall less squarely into primitive law. It might be viewed as a type of law characteristic of an incipient feudalism. It would surely be an example of Customary Law. Such models as these, however, are only partly applicable to the legal institutions of the Frankish, Anglo-Saxon, and other peoples of Europe in the sixth to tenth centuries. They make no place for the penitentials, or the religious laws issued by kings, or the central role

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of the clergy in all phases of government. Above all, Christianity attached a positive value to law which is in sharp contrast to attitudes toward law that are characteristic of religions or philosophies of other societies whose general institutional structure is comparable to that of the Christianized peoples of Europe.

If however, one compares the situation of the church in the GermanicFrankish period of European history with that of the Mosaic priesthood in the tribal period of the history of Israel, one is struck by the ambivalence of the church's attitude toward law and by its otherworldliness. In fact, it was an essential part of the Christian faith of that time to deny the value of attempting to reform in any fundamental way the law of this world. The world's law was believed to be just and even sacred. It failed only if it was compared in value with God's law, which alone could save the wicked from hellfire.

It was this attitude toward law, and toward the relation of the church to the world, that changed dramatically in the late eleventh and the twelfth centuries. The church set out to reform both itself and the world by law. It established itself as a visible, corporate, legal entity, independent of imperial, royal, feudal, and urban authorities. Autonomous bodies of law were articulated, first within the ecclesiastical polity and then within the various secular polities, in part to maintain the cohesion of each polity, in part to achieve the reform of each, in part to keep an equilibrium among them all. These new developments were only possible, however, because the foundations for them had been laid in the earlier period. It was then that a basis was established for the formation of stable communities; that basis was the integrated populus christianus in which there was neither a separation of church from state nor a separation of law from other modes of social control. From a sociological and historical point of view, the existence of such an integrated society was a necessary prerequisite to the later creation of diverse, autonomous, competing systems of law, ecclesiastical and secular. Without that prior integration, new legal systems would have been seen as merely mechanical and bureaucratic, and they would have been incapable of achieving their ultimate purposes of cohesion, reform, and equilibrium.

In the late twentieth century the prehistory of the Western legal tradition takes on special significance. Western society during the past two generations has been characterized increasingly by fundamental divisions of race, class, the sexes, and the generations. Bonds of faith have grown weak and bonds of kinship and of soil have given way to vague and abstract nationalisms. With the breakdown of stable communities, the West no longer has confidence in law as a way of protecting spiritual values against corrupting social, economic, and political forces. There is, of course, no returning to the past -- least of all, to the remote beginnings of Western civilization. Yet it is important, in a time of skep-

-83- ticism, for the skeptics, above all, to ask by what historical route Western man has come to his present predicament, and to confront their own nostalgia for an earlier age when people really believed that "peace vanquishes law, and love vanquishes justice."

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