SOCIOLOGICAL CRITERIA OF LEGAL SCIENCE
In addition to its methodology and its value premises, a science, in the modern Western sense of that word, must be defined in terms of sociological criteria. There are certain social preconditions that not only are indispensable to its existence but also help to form its character.
These include: (1) the formation of scientific communities, usually coextensive with the various disciplines, each of which has a collective responsibility for the conduct of research, the training of new recruits, the sharing of scientific knowledge, and the authentication of scientific accomplishments within the discipline and outside it; 83(2) the linking of the various scientific disciplines in larger scholarly communities, and especially in universities, whose members share a common concern for both the advancement of learning and the education of the young, as well as a common implicit assumption that all branches of knowledge rest ultimately on the same foundations; and (3) the privileged social status of the communities of scientists, including a high degree of freedom of teaching and research, which is correlative to their high degree of responsibility to serve the cause of science itself, its methods, its values, and its social function.That Western legal scholarship was, in the twelfth century, and still is, a collective enterprise, and that legal scholars did, and still do, form a community of shared interests and concerns will scarcely be seriously disputed. That legal scholars also formed, and still form, a profession, in the sense that the individual members have a public responsibility and are pledged to place the advancement of their discipline above their personal self-interest or profit, is perhaps only slightly less obvious. These truisms of Western historical experience may also be applicable to all sciences wherever and whenever they have existed.
But what has been especially characteristic of Western science, including legal science, since the twelfth century is its close historical connection with the institution of the university; science was born in the university and the university bestowed upon it its precarious heritage of freedom of teaching and research.Here is another key to the solution of the question why modern
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Western scientific concepts and scientific methods emerged in the late eleventh and early twelfth centuries. The universities emerged then. This may seem simply to put the question back one step, but it does more: it removes the question from the realm of history of ideas to the realm of history of communities. The scientific methodology and the values that characterize science in the modern Western sense are to be explained not in terms of the unfolding of ideas in some Platonic or H egelian sense, but as social responses to social needs. It takes more than the progressive translation of the works of Aristotle to explain why, in the year 1150, possibly ten thousand students from all over Europe could be found in the town of Bologna in northern Italy studying legal science. 84 They were there because society made it possible __ indeed, made it urgent __ that they be there; more than that, the same social conditions inevitably played a critical part in determining the nature of the legal science that they were there to study.
The scholastic dialectic and consequently modern science, including legal science, were produced by the contradictions in the historical situation of western European society in the late eleventh and twelfth centuries, and by the overwhelming effort to resolve those contradictions and to forge a new synthesis. They were produced, above all, by the revolutionary upheaval which separated the ecclesiastical and secular jurisdictions and thus made the reconciliation of opposites an acute necessity at virtually all levels of social life. A learned profession of jurists emerged in western Europe -- first mainly in the church and eventually, in varying degrees, in the cities and kingdoms -- in response to the need to reconcile the conflicts that raged within the church, between the church and the secular authorities, and among and within the various secular polities.
Formed primarily in the universities, the legal profession produced a science of laws; that is, the jurists constituted a community in which legal science was the expression of the community's reason for being. Through its science, the legal profession helped to solve the contradictions in the social and historical situation of western Europe by solving the contradictions between that situation and the preexisting legal authorities. Legal science was, in the first instance, an institutionalization of the process of resolving conflicts in authoritative legal texts.The presence of important islands of Jewish and Islamic culture in the midst of Christendom contributed to the need for a dialectical method of analysis and synthesis of contradictions as well as to the need for a legal resolution of social conflict. Surprisingly, however, there seem to have been virtually no direct contemporary Jewish or Islamic influences on the development of Western legal systems in their formative era, that is, in the late eleventh and twelfth centuries. There were, to be sure even at that early time, important direct Arabic influences on astronomy,
160- mathematics, medicine, art, and probably also on certain specific governmental institutions and practices (especially in the Norman Kingdom of Sicily), as well as important direct Jewish influences on Biblical studies and theology; and of course the historical influence of Judaism on Christianity wa s enormous, since the Church claimed Abraham as its founder and the Jewish Bible as its heritage. Yet so far as scholarship has thus far revealed, neither the Talmud nor the Koran seems to have made any impact on the first great lawmakers and jurists of the West. 8,5_
The principal social characteristics of Western legal science in its formative period, especially as they were influenced by the universities, may be summarized as follows:
In the first place, the universities helped to establish the transnational character of Western legal science.
As David Knowles has said, "For three hundred years, from 1050 to 1350, and above all in the century between 1070 and 1170, the whole of educated Europe formed a single and undifferentiated cultural unit. In the lands between Edinburgh and Palermo, Mainz or Lund and Toledo, a man of any city or village might go for education to any school, and become a prelate or an official in any church, court, or university (when these existed) from north to south, from east to west. It is the age of Lanfranc of Pavia, Bec, and Canterbury [Lanfranc was William the Conqueror's chief adviser and archbishop of Canterbury]; of Anselm of Aosta, Bec, and Canterbury [Anselm succeeded his former teacher, Lanfranc, under William's successor]; of Vacarius [a famous professor of Roman law] of Lombardy, Canterbury, Oxford, and York; of John of Salisbury, Paris, Benevento, Canterbury, and Chartres [an intimate associate and counselor of kings, archbishops, and popes, "the most accomplished scholar and stylist of his age"];... of Nicholas Brakespeare of St. Albans, France, Scandinavia, and Rome [the son of English peasants, who became Pope Hadrian IV]; of Thomas of Aquina, Cologne, Paris, and Naples... In this period a high proportion of the most celebrated writers, thinkers, and administrators gained greatest fame and accomplished the most significant part of their life's work far from the land of their birth and boyhood. Moreover, in the writings of many of them, there is not a single characteristic of language, style, or thought to tell us whence they sprang. True, we are speaking only of a small educated minority, to which the land-owning aristocracy in general, many monarchs, and even some bishops, did not belong. The world of Church and State was often rent by schisms and wars, while the bulk of the population, fast rooted in the soil, knew nothing beyond the fields and woods of their small corner. But on the level of literature and thought there was one stock of words, forms, and thoughts from which all drew and in which all shared on an equality. If we possessed the written works without their-161-
authors' names we should not be able to assign them to any country or people." 86
What Knowles writes of scholarship in general in that period was equally applicable to legal scholarship in the field of canon and Roman law. These were disciplines without national boundaries. They were taught in the universities to law students gathered from all the countries of Europe. They all, of course, spoke Latin, which was the universal Western language not only of the law but also of teaching and scholarship, as well as of worship and theology.
Second, in addition to giving legal scholarship a transnational character, the European universities helped to give the law itself a transnational terminology and method. The graduates of the university law schools went back to their own countries, or moved to other countries, where they served as ecclesiastical or lay judges, practicing lawyers, legal advisers to ecclesiastical, royal, and city authorities and to lords of manors, and as administrative officials of various kinds. To the extent that they were involved with canon law, they could use their university training directly; to the extent that they were concerned with secular law, they applied to it the terminology and the method of the Roman and canon law that they had studied.
Third, the legal method which was taught in the European universities was one which made possible the construction of legal systems out of preexisting diverse and contradictory customs and laws. The techniques of harmonizing contradictions, coupled with the belief in an ideal body of law, an integrated structure of legal principles, made it possible to begin to synthesize canon law and then feudal law, urban law, commercial law, and royal law.
Fourth, the universities exalted the role of the scholar -- the scientist -- in the shaping of the law. The law was to be found primarily in the ancient texts, and hence it was necessary to have a class of learned men who could explain the texts to those who wished to be introduced to their mysteries.
The doctor, that is, the university teacher, became the authoritative expositor of the "true rule." This, too, gave a universality to legal science that helped to overcome the contradictions of laws.Fifth, the juxtaposition of law and other university disciplines -- especially theology, medicine, and the liberal arts -- also contributed a breadth to law studies that would otherwise have been lacking. The scholastic method was used in all the disciplines; also the subject matter of all the disciplines overlapped. Thus the law student could not help knowing that his profession was an integral part of the intellectual life of his time.
Sixth, law, though linked to other university disciplines, also was separate and distinct from them; it was no longer, as it had been before the rise of the universities, a branch of rhetoric, on the one hand, and of
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ethics and politics, on the other. While in the Roman Empire the autonomy of legal thought had been maintained by practitioners, especially praetors and professional legal advisers, in western
Europe that autonomy was maintained by the universities.
Seventh, the fact that law was taught as a university discipline made it inevitable that legal doctrines would be criticized and evaluated in the light of general truths, and not merely studied as a craft or technique. Even apart from the universities, the church had long taught that all human law was to be tested and judged by divine law and moral law; but the university jurists added the concept of an ideal human law, the Roman law of Justinian's books, which -- together with the Bible, the writings of the church fathers, the decrees of church councils and popes, and other sacred texts -- provided basic legal principles and standards for criticizing and evaluating existing legal rules and institutions. These inspired writings of the past, and not what any lawgiver might say or do, provided the ultimate criteria of legality.
Eighth, the Western universities raised the analysis of law to the level of a science, as that word was understood in the twelfth to fifteenth centuries, by conceptualizing legal institutions and systematizing law as an integrated body of knowledge, so that the validity of legal rules could be demonstrated by their consistency with the system as a whole.
Ninth, the universities produced a professional class of lawyers, bound together by a common training and by the common task of guiding the legal activities of the church and of the secular world of empires, kingdoms, cities, manors, and merchant and other guilds. The law students themselves, initially at least, formed a corporation, a guild, and although upon graduation they scattered to many countries, they remained bound together informally by their common training and their common task.
It is true that in England in the fourteenth century there grew up alongside the university law schools of Oxford and Cambridge a different mode of legal education, in the Inns of Court. Nevertheless, in England as in other countries of Europe the system of university law teaching established in the twelfth century had a profound influence on legal thought. It is also true that the growth of nationalism in modern times has made inroads into the transnational character of Western legal education, and that the links between law and other university disciplines have been substantially weakened. Yet something of the Bologna tradition, and something of the scholastic dialectic, survive nine centuries later -- even in the law schools of America. Indeed, they have spread throughout the world. Only in the latter part of the twentieth century have they come to be seriously challenged.
The new legal methodology that emerged in the West in the late eleventh and the twelfth centuries -- its logic, its topics, its style of
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reasoning, its levels of generalization, its techniques of interrelating particulars and universals, ca ses and concepts was an essential part of the conscious systematization of law as an autonomous
science. This, in turn, was an essential part of the creation of autonomous legal systems for the new politics that emerged from the Papal Revolution: the new church_state, the emerging secular kingdoms, the chartered cities and towns, the newly systematized feudal and manorial relationships, the translocal community of merchants. The emphasis on conflicting, authoritative leg al texts, and on their reconciliation by means of general principles and concepts, was a creative intellectual response to the felt need to reconcile the sharply conflicting elements that coexisted and competed within the social structure. To recognize the legitimacy of each of the contradictory elements (ecclesiastical and secular, royal and feudal, feudal and urban, urban and guild) and yet to recognize the structural unity of the total society ( Europe, the West, Western Christendom), of w hich they were parts, and to find a genuine synthesis, that is, a way of dealing with the ambiguities
and conflicts without destroying the autonomy of the factors that constituted them_________________________________________________________ that was the
revolutionary challenge of the times. And that was the challenge which was confronted in legal science by the glossators and the canonists, just as it was confronted in the development of the new legal systems that were created with the help of that science. 87.
By the same token, however, the new Western legal science was much more than an intellectual achievement -- much more than a method of reasoning or a method of organizing thought. Its criteria were moral as well as intellectual. The form expressed substantive values and policies. 88 The reconciliation of opposing legal rules was part of a larger process of attempting to reconcile strict law and equity, justice and mercy, equality and freedom.
Above all, the effort to combine these conflicting norms and values was seen in the eleventh and twelfth centuries as part of an even more formidable reconciliation -- the reconciliation of God and man. More than anything else, it was the new vision of his own ultimate destiny that first led Western man to have faith in legal science.
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