The Application of the Scholastic Dialectic to Legal Science

Probably the most striking single example of the role of the scholastic dialectic in the formation of Western legal science is the great treatise of the Bolognese monk Gratian, written about 1140 and entitled characteristically, A Concordance of Discordant Canons.

Prior to the previous century (the eleventh) there had been no effort to collect all the laws of the church into a single book or books, and in such partial collections as existed the. laws (typically called canones, "rules") were arranged chronologically. About 1012, however, Burchard, Bishop of Worms, made a very large collection, called a Decretum -- it runs to some five hundred pages in a printed edition -- arranged not chronologically but according to various categories, including the episcopacy, ordained persons, churches, baptism, the Eucharist, homicide, incest, monks and nuns, witches, excommunication, perjury, fasting, drunkenness, laymen, accusers and witnesses, fornication, visitation of the sick, penance, and contemplation (in that order). ⁵⁰ Burchard did not distinguish law from theology and did not attempt to present any explicit theory or theories of law. He set forth, without comment, scriptural texts, canons of ecumenical and local councils, decrees of popes, rules contained in various penitentials, and other sources. Then in 1095 Ivo, Bishop of Chartres, made another such collection, also called a Decretum, and a few years later he made still another, called Panormia.

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ecclesiastical rules "into one body." He was one of the first to set forth conflicting passages in the authorities and to suggest some standards by which they could be reconciled. Admonitions, he said, should yield to statements of law, and indulgences should not be given the force of general rules. Also, it should be considered whether a particular canon is revocable or irrevocable, and whether it was intended that dispensations from it should be granted under certain circumstances.

Gratian built on Ivo's work. ⁵² He also had before him the work of the glossators of the Roman law, above all his fellow citizen Irnerius. By the time of Gratian, Irnerius and his followers at the law school of Bologna had for some decades been cross-indexing and glossing the Roman texts, and formulating general principles to explain them. Gratian, however, pursued a method of systematization different from that of any of his predecessors. Unlike the Romanists, he did not have a predetermined text but had to dig out for himself, from many written sources, the canons that he wished to systematize. He collected and analyzed approximately 3800 canonical texts, including many from early periods of church history. But he did not group them according to the conventional categories either of earlier canonical collections (ordination, marriage, penance, and so forth) or of Roman law (persons, things, obligations, succession, crimes, and so forth).

His categories were, on the one hand, more comprehensive: the first part of his work was arranged in 101 divisions (distinctiones), of which the first 20 analyzed and synthesized authoritative statements concerning the nature of law, the various sources of law, and the relationship between the different kinds of law, while the next 81 dealt with the jurisdiction of various offices within the church and other rules concerning ecclesiastical personnel.

The best example of his more comprehensive method of analysis and synthesis is found in the first twenty distinctiones, in which various kinds of law are identified (divine law, natural law, human law, the law of the church, the law of princes, enacted law, customary law), and the relationships among them are defined. Gratian did not, of course, invent

144- these categories: the Roman jurists had adapted to their own use Aristotelian distinctions between natural law and positive law, universal law and national law, customary law and enacted law; and the distinction between divine and human law had always existed within the church. But Gratian w as the first to explore systematically the legal implications of these distinctions and to arrange the various sources of law in a hierarchical order. He started by interposing the concept of natural law between the concepts of divine law and human law. Divine law is the will of God reflected in revelation, especially the revelation of Holy Scripture. Natural law also reflects God's will; however, it is found both in divine revelation and in human reason and conscience. From this Gratian could conclude that "the laws [leges] of princes [that is, of the secular authorities] ought not to prevail over natural law [jus naturale]." 54 Likewise ecclesiastical "laws" may not contravene natural "law." 55.

Gratian also concluded that, as a matter of natural law, "princes are bound by and shall live according to their laws." ⁵⁷ This principle had been declared also by Ivo and Burchard. In its strict form-that kings are "bound" by their laws -- it was not a part, however, of older Roman and Germanic law. There were passages in the earlier texts to the effect that a good prince or emperor ought, as a moral matter, to observe his own laws, but it was generally stated that, as a matter of law, he was absolved from them. 58- Under the new theory, on the contrary, although the lawmaker could change the old laws in a lawful manner, he could not lawfully disregard them at will.

Moreover, the laws (leges) and enactments (constitutiones) of princes were, according to Gratian, to be subordinate to ecclesiastical leges and constitutiones. ⁵⁹ Further, customs (consuetudines), he wrote, must yield not only to natural law but also to enacted laws, whether secular or ecclesiastical. ⁶⁰

The theory that customs must yield to natural law was one of the greatest achievements of the canonists. When Gratian lived, most law in the West was customary law; that is, most legal norms were binding not because they had been promulgated by political authorities, whether ecclesiastical or secular, but because they were practices accepted as binding by the communities in which they prevailed. Enacted laws were relatively rare. Also, enacted laws were still. justified, for the most part, as restatements of preexisting custom. The theory of Gratian and his fellow canonists provided a basis for weeding out those customs that did not conform to reason and conscience. Elaborate criteria were developed to determine the validity of a custom: its duration, its universality, its uniformity of application, its reasonableness -- tests still used in the twentieth century.

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Thus the canon lawyers "marked off," in the words of Gabriel Le Bras, "from the principles of eternal validity the variable elements of the law, which had been suggested by particular circumstances, whether of time, place, or persons, and enforcement of which other conditions might render unreasonable. This amounted to the recognition of the relativity of rules and provided a technical method of harmonizing contradictions." 6 1 Two contradictory rules could both be true if, in the words of Gratian's Prologue to the Concordance of Discordant Canons, they related to a law which was "variable" and the contradiction was due to a dispensation in a special case.

Gratian's emphasis on natural law and on reason was derived in part from Greek, especially Stoic, philosophy. In addition, the newly rediscovered Roman law of Justinian included many references to and remarks about natural law and equity, but it had not developed those concepts into any sort of system. The sources of law were classified but they were not organized into a hierarchy or pattern. The Roman lawyers were not philosophers, and the Greek philosophers were not lawyers; but in the twelfth century the canonists and Romanists of western Europe combined the Greek capacity for philosophy with the Roman capacity for law. In addition, they deepened the earlier concepts of reason and equity by adding to them the Judaic and Christian concept of conscience, which they related to mercy and love.

Moreover, they specifically identified the division between positive law and natural law as a division between lex, that is, an enacted law, and jus, or the system of justice, of right. Not only princes and other secular authorities but also ecclesiastics -- popes, local councils, bishops -- enacted individual leges and constitutiones. But the body of jus, whether it was the body of Roman law (corpus juris Romani), as it then came to be called, or the new body of canon law (corpus juris canonici), as it came to be called a century later, was sacred; and the validity of an enacted law depended on its conformity to the body of human law as a whole, which in turn was to conform to both natural law and divine law.

The subordination of positive law to natural law was reinforced by the dualism of secular and ecclesiastical law as well as by the coexistence of conflicting secular authorities. The church claimed that secular laws which contradicted the law of the church were invalid. Princes did not always yield to that claim. Nevertheless, they themselves made similar claims with respect to laws of competing secular authorities (such as feudal lords or city councils) and occasionally to laws of competing ecclesiastical authorities. Given plural legal systems, victims of unjust laws could run from one jurisdiction to another for relief in the name of reason and conscience.

The laws of the church itself were to be tested by their conformity to

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natural law. Gratian wrote: "Enactments, whether ecclesiastical or secular, if they are proved to be contrary to natural law, must be totally excluded." 6 2 However, only rarely was anyone in a position to say authoritatively that an ecclesiastical enactment was contrary to natural law, for the pope was not only the supreme legislator in the church but also the vicar and representative of Christ on earth. In the twelfth and thirteenth centuries, at least, most of the men who served as officials and judges an d counselors of kings and emperors were clerics who owed at least half of their allegiance to the pope. Nevertheless, secular authorities did sometimes challenge ecclesiastical enactments on the ground that they were contrary to natural law.

The theory of the relativity of rules was thus based partly on the politics of competing legal systems.

But it was also based partly on the scholastic dialectic, which provided a method for placing both customary laws and enacted laws within a larger theoretical framework of the nature and sources of law.

A good example of Gratian's second principal method of systematization -- the method used in the second part of his work, specifically, the analysis and synthesis of conflicting solutions to a particular legal "question" -- is his discussion of whether or not priests should read profane literature. ⁶³ After posing the problem, Gratian quotes the statements of church councils, church fathers, and others, as well as examples from Scripture and church history, all tending to show that priests should not read profane literature, and then he quotes similar authoritative statements and examples to the opposite effect. After giving each authoritative statement or example, Gratian introduces his own interpretation. Thus he starts with the pronouncement of the Carthaginian Council, "A bishop should not read the books of the heathen." In his gloss he notes that nothing is said about books of heretics, which may be read "carefully, either of necessity or for some special reason." He comments further on the word "necessity," interpreting it as signifying that priests may read the books of heretics "in order that they may know how to speak correctly." A more significant gloss accompanying the statement of the question itself sums up the interpretation of all the authorities against reading profane literature: "pleasure alone seems to be forbidden." Ultimately Gratian offers his conclusion, "solving the contradiction" by stating that anyone (and not only priests) ought to learn profane knowledge not for pleasure but for instruction, in order that what is found therein may be turned to the use of sacred learning. Thus Gratian used general principles and general concepts to synthesize opposing doctrines­not only to determine which of two opposing doctrines was wrong, but also to bring a new, third doctrine out of the conflict. ⁶⁴

Many other examples could be given to show how the scholastic method was applied to particular legal problems in order to reconcile

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Contradictions among authoritative texts and to bring forth new doctrines from them. The following example, drawn not only from Gratian but from other canonists and from Romanists of the twelfth and thirteenth centuries, shows the similarities between the legal technique of the scholastic jurists and modern legal technique. Both the Old Testament and the New Testament forbid killing; yet both give examples in which the use of force is approved. Roman law, on the contrary, although it did not purport to lay down moral standards, contained the rule, Vim vi repellere licet ("Force may be used to repel force"). Like Roman legal rules generally, this was not conceived as embodying a general principle or concept but was limited to the specific types of situations in connection with which it was found, chiefly the rule of Lex Aquilia that a man could use physical force to protect his property from seizure. The European jurists of the twelfth and thirteenth centuries converted the Roman law rule into a general principle, which they juxtaposed with the so_called pacifistic utterances of Jesus ("turn the other cheek"), and from the opposing maxims they developed a general concept of justification for the limited use of force applicable to a whole series of interrelated categories systematically set forth: force necessary to execute the law, to defend oneself, to defend another, to protect one's own property, to protect another's property. These principles were applied not only to civil and criminal law but also to political and theological questions concerning a "just war." 65______________________________________________________________

These are rather simple examples of the scholastic technique of posing a quaestio relating to contradictory passages in an authoritative text, followed by a propositio stating authorities and reasons in support of one position, followed by an oppositio, stating authorities and reasons for the contrary view, and ending with a solutio (or conclusio) in which it is shown either that the reasons given in the oppositio are not true or that the propositio must be qualified or abandoned in light of the oppositio. Usually, the scholastic method of posing "disputed questions" was much more complex. ⁶⁶ The teacher or writer would often pose not one but a series of interconnected problems, one after the other. Arguments were then made on opposite sides, as though by a plaintiff and a defendant in a lawsuit. The pros and the cons would be "arranged in two battle fronts." ⁶⁷ In support of each argument, rules of law were cited; sometimes dozens of such allegationes were made to support a single argument pro or con. Most of the characteristic terms of the argument, as Hermann Kantorowicz has shown, were derived from the available literature on Greek dialectics or from the Roman law texts of Justinian, or from both. ⁶⁸ What was wholly new, when the method was first invented by the jurists in the second quarter of the twelfth century, ⁶⁹ was the putting together of all these terms in a highly complex structure resembling pleading and argumentation in difficult cases in court. The

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resemblance was not accidental; Kantorowicz believes that the style was first developed in litigation and then imitated in the classroom and in the literature_just as the style of the English Yearbooks of 1280 - 1535 was probably derived from student notes of arguments in cases in the king's courts. 70 But that still leaves the question why argument in court took the form of a whole battery of positions pro and con, with multiple citations, intricate regulations, and complex syntheses. Surely an important part of the answer is that "the quaestiones dispulatae were the chief link between the written law of Justinian and its application in the contemporary courts of justice. Thus was de veloped the courage to draw audacious analogies, to handle far_flung principles of equity, to fill the lacunae of the law by intuition and imagination. Therefore, the historical importance of these questions as a dynamic factor in the adaptation of the Roman law to changed and everchanging views and conditions was great indeed." 71 The same, audacity, and the same techniques, were applied in adapting Biblical, patristic, and canonical principles to the new conditions of life.

In addition to elaborating general legal principles that underlay the rules applicable to concrete cases, the jurists of the twelfth and thirteenth centuries, both canonists and Romanists, also defined general concepts, such as the concept of representation, the concept of the corporation, and the concept of jurisdiction. Here again, while the Roman law of Justinian provided the basic terminology and the Greek dialectics of Plato and Aristotle provided the basic method, the combination of the two -- in a wholly different social context -- produced something quite new. For example, the Roman jurists had laid down various rules under which a slave could act in behalf of his master, as his agent, and the master would be liable, but they had offered no general definition of agency or of representation. Similarly, they had stated a variety of situations in which a group of people were to be treated as a collective unit, such as a societas ("partnership"), but they had offered no general definition of group or corporate personality and they had not developed the idea of limited liability. Justinian's Roman law lacked even a general concept of contract; it provided for certain specific types of contracts, but they were not subordinated to a general concept of binding promises, so that an agreement which fell outside the types of contracts named by law was ipso facto not a contract. ⁷²

It would be wholly incorrect to say that there were no general concepts in the Roman law of the time of Justinian and before; on the contrary, Roman jurists eagerly discussed situations in which a contract would be void because of "mistake," situations in which the enforcement of an informal obligation was required by "good faith," and various other types of situations in which legal results involved a reference to concepts. Indeed, Roman law from early times was permeated by such concepts as

-149- ownership, possession, delict, fraud, theft, and dozens of others. That was its great virtue. However, these concepts were not treated as ideas which pervaded the rules and determined their applicability. They were not considered philosophically. The concepts of Roman law, like its numerous legal rules, were tied to specific types of situations. Roman law consisted of an intricate network of rules; yet these were not presented as an intellectual system but rather as an elaborate mosaic of practical solutions to specific legal questions. Thus one may say that although there were concepts in Roman law, there was no concept of a concept.

In contrast, the European jurists who revived the study of Roman law in the eleventh and twelfth centuries set out to systematize and harmonize the huge network of Roman legal rules in terms both of general principles and of general concepts, using methods similar to those which their colleagues in theology were employing to systematize and harmonize the Old and New Testaments, the writings of the church fathers, and other sacred texts. The jurists took as a starting point the concept of a legal concept and the principle that the law is principled.

This amounted to much more than the addition of a philosophical dimension to the more practical style of the Roman texts; it fundamentally changed the very meaning of everyday legal questions, such as, "What are my rights if my debtor does not pay up?" The Roman rules might still be cited, but they would be subject to interpretation in the light of their perceived underlying purposes and their perceived relationship to other parts of the whole system. For example, whereas the Roman rule might require the debtor to pay even if he had a valid counterclaim, leaving him to pursue his remedy against the creditor in a separate action, the European Romanists and canonists would apply the concept of mutuality of contractual obligation, based ultimately on the principle of good faith.

The conceptualization of general legal terms, like the formulation of general principles underlying the legal rules, was closely related not only to the revived interest in Greek philosophy but also to developments in theology; and both the philosophical and the theological aspects were closely related to the great changes in political, economic, and social life which constituted the Papal Revolution. Above all, it was the coexistence and competition of newly emerging, centralized polities, ecclesiastical and secular, that made it important to articulate the principles. Thus the church in the eleventh century was the first collective to call itself a corporation (universitas). The authority of bishops and priests, formerly derived solely from the sacrament of ordination, was held to be derived also from jurisdiction: they were for the first time appointed with the consent of the papacy ("by grace of God and of the Apostolic See") and could be removed only by the papacy. A bishop was viewed as an official of the corporate church. His "jurisdiction" included the power

150- and duty to try cases in his court, under the rules of a universal body of procedural and substantive law, with an automatic right of appeal by the losing party to the papal curia.

A similar process of conceptualization took place in the development of secular legal systems. The same terms, derived largely from Roman law, were used in the articulation of general principles and eventually in the formation of general concepts. The principles and concepts were then used as a basis for extrapolation of new applications. This development revolutionized the science of law. It meant that the meaning of a legal rule could be tested, and its validity proved, by showing its organic consistency with the principles and concepts of the system as a whole.