The Background of the Western Legal Tradition: The Folklaw

AN HISTORIAN IS KEENLY AWARE of the danger of speaking about "origins." Wherever one starts in the past, there are always earlier beginnings -- a fact which may testify to the continuity of the entire history of the human race.

Despite this warning, I am prepared to argue that there are seams, there are new things under the sun, and where one starts is not necessarily arbitrary. More particularly, it is a principal thesis of this book that there was a time when what is known today as a legal system -- a distinct, integrated body of law, consciously systematized-did not exist among the peoples of Western Europe, and that at the end of the eleventh century and in the early twelfth century and thereafter legal systems were created for the first time both within the Roman Catholic Church and within the various kingdoms, cities, and other secular polities of the West.

The term legal system is used here to mean something narrower and more specific than law in general, or what may be called a "legal order." There was a legal order in every society of the West prior to the eleventh and twelfth centuries, in the sense that there were legally constituted authorities that applied law. Indeed, at no time in their history did the peoples of Western Europe lack a legal order: the earliest written records are collections of laws, and Tacitus, writing in the first and second centuries A.D., describes Germanic assemblies that acted as courts.

procedures for deciding cases. Yet, the legal rules and procedures which were applied in the various legal orders of the West in the period prior to the late eleventh and early twelfth centuries were largely undifferentiated from social custom and from political and religious institutions. No one had attempted to organize the prevailing laws and legal institutions into a distinct structure. Very little of the law was in writing. There was no professional judiciary, no professional class of lawyers, no professional legal literature. Law was not consciously systematized. It had not yet been "disembedded" from the whole social matrix of which it was a part. There was no independent, integrated, developing body of legal principles and procedures clearly differentiated from other processes of social organization and consciously articulated by a corps of persons specially trained for that task.

In the late eleventh and early twelfth centuries all this changed "with marvellous suddenness," to use Maitland's phrase. In every country of the West there were created professional courts, a body of legislation, a legal profession, a legal literature, a "science of law." The primary impulse for this development came from the assertion of papal supremacy over the entire Western church and of the independence of the church from secular control. This was a revolution, declared in 1075 by Pope Gregory VII; the papal party and the imperial party fought it out in bloody wars for almost fifty years, and it was only after almost one hundred years, in 1170, that the martyrdom of Thomas Becket sealed the final compromise in England.

In the following centuries the folklaw of the peoples of Europe seemed to disappear almost completely. New sophisticated legal systems were constructed, first for the church and then for the secular political orders -- canon law, urban law, royal law, mercantile law, feudal and manorial law.

Nevertheless, Western concepts of law -- and perhaps more important, Western attitudes toward law- cannot be understood unless they are seen partly in terms of what they first emerged from and reacted against. Especially now, in the last part of the twentieth century, when the West is less sure of its legal tradition than ever before, it is important to recall what that tradition originally replaced. Surely if new ways are being sought to overcome or supplement Western "legalism," they should be considered in the light of the Germanic alternative, which, although it was once rejected, still remains beneath the surface of our historical memory.

Moreover, although the jurists of the new era denounced the "irra­

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tional" features of the old customs and subjected them to drastic revision, Germanic law was not wholly rejected, and the parts that were rejected were not dropped all at once. The new jurisprudence was not a creation ex nihilo. It was a conscious reaction against the past (often in the name of a still older past), but it was also a re_creation of preexisting institutions and ideas.

More than that, Germanic law provided a necessary foundation for the new legal tradition that superseded it. Perhaps the clearest evidence in support of this paradoxical truth may be found in the new legal developments within the church. In the late eleventh and early twelfth centuries the church in the West achieved for the first time a legal identity independent of emperors, kings, and feudal lords. There was a separation of the church from the secular authorities and a separation of ecclesiastical law from other modes of ecclesiastical control.

Similarly, the Germanic folklaw, which was basically tribal, local, and feudal (or protofeudal), based on blood feud and composition of blood feud, with ordeals, oath-helping, and other procedures -- all of which came under attack in the late eleventh and early twelfth centuries -- was a necessary foundation for the secular legal systems which replaced it. The necessary foundation was, once again, the communitarian character of the society which the older folklaw had helped to maintain. The new law, in contrast to the old law, was learned, sophisticated, systematized; but it could not have come into being, and it could not have continued to exist, without the foundation of structured, close-knit Germanic communities, with their strong emphasis on interdependence, comradeship, mutual responsibility, and other communitarian values.

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