The Canon Law of Crimes

The new theology was reflected in a new system of criminal law, created by the canonists of the eleventh and twelfth centuries, which differed substantially from "God's law," that is, the penitential law, that had previously prevailed in the Western Church, as well as from the "worldly law" (or "man's law") that had prevailed, alongside the penitential law, in the tribal, local, feudal, and royal or imperial legal orders.

In the earlier period the words "crime" and "sin" had been used interchangeably. Generally speaking, not only were all crimes sins but all sins were also crimes. There was not a sharp distinction in underlying nature between offenses to be atoned for by ecclesiastical penance, on the one hand, and offenses to be dealt with by kinship negotiations (or blood feuds), by local or feudal assemblies, or by royal or imperial procedures, on the other hand. Homicide, robbery, and other major violations of man's law were considered to be at the same time violations of God's law; conversely, sexual and marital offenses, witchcraft and magic, sacrilege, and other major violations of God's law were considered to be at the same time violations of man's law. The clergy played a predominant role in "secular" adjudication, and the supreme royal or imperial authority was itself considered to have a sacral and sacerdotal character. In the church, however, there was no regular system of adjudication of crimes, such as developed after the Papal Revolution; the system of ecclesiastical penances was administered chiefly by local priests and monks, whose purpose was not punishment as such but care of souls, renewal of moral life, and restoration of a right relationship with God. Similarly, the primary purpose of secular sanctioning was not punishment as such but satisfaction of honor, reconciliation, and restoration of peace.

In the late eleventh and the twelfth centuries a sharp procedural distinction was made, for the first time, between sin and crime. This happened partly because the ecclesiastical hierarchy succeeded in withdrawing from the secular, authorities jurisdiction over sins -- thereby, incidentally, giving the word "secular" a new meaning. Any act punishable by royal or other "lay" officials was henceforth to be

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punished as a violation of secular law and not as a sin, that is, not as a violation of a law of God. When the secular authority punished for robbery, for example, it was to punish for the breach of the peace, for the protection of property, for the offense against society. In this world, it began to be said, only the church has the jurisdiction to punish for sins__________ thereby, incidentally, giving the word

"church" a new meaning, connected with such terms as "hierarchy," "in this world,"

"jurisdiction," punishment for sins."

A gross exception, however, to the principle of the division between ecclesiastical and secular jurisdictions was contained in the law applicable to heretics. In the twelfth and thirteenth centuries, heresy, which previously had been only a spiritual offense, punishable by anathema, became also a legal offense, punishable as treason. The inquisitional procedure was used for the first time to expose it, and the death penalty was for the first time made applicable to it. The gist of the offense was dissent from the dogmas of the church. If the accused was willing to swear an oath to adhere to those dogmas, he was to be acquitted, although he was still subject to penances if he had sworn the oath only because of torture or other duress. If he persisted in heresy he remained liable to prosecution in the church courts and to transfer to the secular authorities for execution. Thus the church overcame its aversion to the shedding of blood by engaging in it only indirectly.

The church divided its authority over sins into two parts: (1) sins that were judged in the "internal forum" of the church, that is, by a priest acting under the authority of his ordination, especially as part of the sacrament of penance; and (2) sins that were judged in the "external forum" of the church, that is, by an ecclesiastical judge acting under the authority of his jurisdiction. The latter were called by the twelfth-century canon lawyers criminal sins, or ecclesiastical crimes, or simply crimes. A criminal sin was a violation of an ecclesiastical law.

The principle that a criminal sin is a violation of an ecclesiastical law carried with it necessarily the principle that what is not a violation of an ecclesiastical law is not actionable in an ecclesiastical court. This was expressed in the twelfth century by Peter Lombard in the following way: "There is no sin if there was no prohibition." ⁴³ The use of the past tense -- "was" -- is striking. Here was the beginning of a long and winding jurisprudential path in the Western legal tradition, which culminated in the principle expressed in the eighteenth century in the Enlightenment and in the French Revolution's Declaration of the Rights of Man and the Citizen: Nullum crimen, nulla poena sine lege -- "No crime, no punishment without a law," that is, without a previously enacted statute defining the crime and fixing the punishment.

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From the principle that every criminal sin is a violation of an ecclesiastical law it does not necessarily follow, however, that every violation of an ecclesiastical law is a criminal sin. A sin is an offense against God. Only in a society in which all laws are divine is every violation sinful. That was so in ancient Israel, under the Mosaic law. It was true also among the Germanic peoples of Western Europe prior to the eleventh century.

also offenses against the church and which the church, viewed as a corporate entity, a political_legal institution, had jurisdiction to judge through its own courts. Criminal sins differed from other sins in that their sinfulness, that is, their offensiveness to God, was measured by standards of ecclesi astical law applied by ecclesiastical judges acting under authority of their jurisdiction __ rather than b y standards of divine law applied by God himself through priests acting under authority of their ordination.

The theoretical foundation for the new law of ecclesiastical crimes was laid by Abelard in his Ethics, some decades before it was given a more detailed legal formulation by Gratian, the great founder of the science of canon law. ⁴⁴ Abelard set forth three main conditions that were required to make a sin cognizable in the ecclesiastical courts:

First, it must be a grave sin. The starting point for determining its gravity was the traditional division between mortal sins (literally, sins involving death, that is, spiritual death), and venial sins (pardonable sins, light sins). Following Abelard, the twelfth-century canonists said that only a mortal sin can constitute a crime and, further, that not all mortal sins constitute crimes, but only those mortal sins which, under the circumstances of their commission, were sufficiently grave to merit criminal punishment at the order of an ecclesiastical court.

Second, the sin must be manifested in an external act. Sinful thoughts and desires are punishable by God and are cognizable in the "heavenly forum" (as Abelard called it) of the church in the sacrament of penance, including confession; but they are not to be punished as such in the "earthly forum" of the church, that is, by an ecclesiastical court. Abelard

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put this on the ground that only God can see directly into the mind and heart and soul of a person, and that human judges can only know what is externally manifested. It came to be universally accepted that "the church does not adjudicate matters that are hidden." This, in turn, led to the rule of canon law-which eventually came to be the rule also of the secular legal systems of the West -­that mere preparation of a crime (even to the extent of assembling the means to commit it) is not punishable; there must be at least an attempt, that is, an external act commencing the course of criminal conduct. There were two striking exceptions to this rule: treason and heresy.

The canomsts also defined the kinds of intent and the kinds of causal connection that were required for an external act to be criminal. They distinguished between "direct intent" (knowledge that the act would produce the particular illegal result -- for example, a homicide -- coupled with the desire to cause the result) and "indirect intent" (knowledge that the illegal result would occur but no desire to accomplish it -- for example, the reluctant killing of a guard in order to escape). They also distinguished between intent (of either kind) and negligence (as in the case where the actor lacked knowledge that the result would occur, but if he had been diligent he would have known). With regard to causation, they distinguished between remote causes (causae remotae) and proximate causes (causaeproximae).

Third -- according to Abelard (and the canonists followed him in this as well) -- the act must be vexatious to the church. It must be a "scandal" to the ecclesiastical polity. The law should not punish even morally evil acts unless they are also harmful to the society whose law is being applied. This, too, seems wholly modern. ⁴⁵Thus the canonists determined, for example, that a breach of a simple promise, though morally reproachable, is not sufficiently vexatious to the church to justify the imposition of criminal sanctions.

What was not modern in the new canon law of crimes was the use of external indicators not only to determine guilt in the modern sense (was the act a crime? did the accused commit it?) but also to measure the sinfulness of the accused. Abelard went farther than his successors in attempting to eliminate the question of sinfulness: he argued that the

188- gravity of the sin should be presumed from the external indicators. In other words, in Abelard's view the ecclesiastical court should not make a specific inquiry into the attitudes, the motivations, and the character of the accused except insofar as such an inquiry was necessary to determine his violation of ecclesiastical law, that is, whether his act was sufficiently immoral and sufficiently harmful to the church to constitute an ecclesiastical crime and whether he had the requisite intent to commit it, whether there was the requisite causal connection, and whether the other legal requirements of guilt were established. His sinful mind (attitudes), heart (motivations), and soul (character), which were known directly to God, could only be known to the ecclesiastical court through external signs; and therefore, Abelard argued, only the external signs should be examined by the court. Stephan Kuttner

points out that this reasoning might have led Abelard to a concept of crime totally emancipated from sin and totally free from theology (theologiefrei), but that Abelard did not take the final step to reach that concept. 46 Instead, he used a conclusive presumption, that is, a fiction, to bridge the gap between crime and sin. He postulated that the tests available to earthly judges, despite their limitations, will yield a result that approximates the result reached by God_________________________________________________________ and that it is hopeless to

seek more than such an approximation.

Abelard's view that sinfulness may be presumed and only presumed, and therefore ignored, was rejected by the church. ⁴⁷ The canon lawyers were concerned above all with measuring the offense against God. They saw the "external indicators" as God-given devices for that purpose, but they also went beyond them to a specific inquiry into the mind and heart and soul of the accused. They recognized that ecclesiastical law is applied in the earthly forum of the church, not in the heavenly forum, and that therefore it must proceed according to the criteria of objectivity and generality; nevertheless, they saw no essential conflict but rather a basic harmony between those criteria and the criteria of divine justice. Following their conceptions of God's own procedures, they were interested to determine both whether the accused intentionally committed a morally and socially offensive act in violation of a law and to what extent he thereby revealed a depraved mind and heart and soul.

The two types of inquiry were not, in fact, separate. In order to evaluate the act it was necessary to analyze the actor's intent. This led to an examination of the freedom of his will. The canonists developed the rules -- now familiar to all Western legal systems -- that a person may be excused from criminal liability if he acted while he was out of his mind, or asleep, or drunk, or mistaken, provided: (1) that as a result of his condition he could not know that what he was doing was wrong, and (2) that he had not wrongfully brought himself into such a condition (as, for example, by voluntary intoxication). Clearly, an inquiry into the freedom of will of the accused which leads to a consideration of whether he

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wrongfully brought himself into a condition in which he should have known that he might commit a morally evil, socially harmful, illegal act is at least compatible with, if it does not necessarily lead to, an examination of a man's whole personality. Such an inquiry will almost inevitably pass from questions of intent and knowledge to questions of attitude and motivation and character. From the canonist point of view this was highly desirable, since it was the sinfulness of the actor himself, and not only the criminality of the act, which ultimately justified the ecclesiastical court in taking jurisdiction over criminal sins once the division had been made between secular and ecclesiastical criminal law.

The intimate connection between crime and sin in the canon law is also apparent in the rules which were first systematically developed in the twelfth century concerning justification and excuse for acts otherwise criminal. It was accepted that a person who intentionally attacks another may be justified by self-defense or by defense of others, or he may be excused because he was exercising disciplinary authority, or he may be immune from criminal liability because of his youth or because of some other incapacity. Here, too, the canonists (relying in part on the Justinian texts) created modern criminal law, but not for modern reasons. What they were concerned with above all was not the guilt but the sin. ⁴⁸ Again, the evaluation of justifications and excuses for acts merged with the evaluation of motivations, attitudes, character.

A case that was widely discussed in the twelfth and thirteenth centuries may illuminate these considerations. Robbers broke into a monastery, knocked out two monks, and stole their clothes. The monks regained their strength and overpowered and tied up the robbers. One of the brothers went to notify the head of the chapter, leaving the other to guard the robbers. The captives began to free themselves, whereupon the brother who had been left behind killed them in order not to be killed by them. The case was brought to Alexander III, the famous twelfthcentury jurist pope, who declared both the tying up of the robbers and the killing of them to be criminal sins. The brothers had offended against the meekness which was required of them as monks and also against ecclesiastical discipline. They had neglected Jesus' precept that if a man takes your coat you should let him have your cloak as well. Kuttner reports: "Many canonists cited this Decretal as an argument against the admissibility of the killing of a thief by a cleric or against the right of a cleric to undertake armed opposition for protection of goods or in general against the use of force in self-defense on the part of any who (like monks) strive for evangelical perfection. It was probably more accurate, however, to interpret the decision of Alexander, in the concrete circumstances of the case, according to the general doctrine of selfdefense and not to treat it as a problem of [justification for] killing a thief; for the second monk had attacked the robbers not for the sake of

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the goods but in defense of his life... [However,] this situation of selfdefense had been created by the previous tying up of the robbers, and that had been inadmissible, since before then the first attack had already been warded off' and the monks could have escaped in another way. Thus th e tying up could be seen... as a culpa praecedens [preceding guilt] for the defensive killing; and so Alexander's decision was harmonized with the general theory of [the privilege of] self_defense. 49_ This case is an example of the close connection between crime and sin-that is, between offenses against the legal order of the church and offenses against God -- in the canon law. As a matter of criminal law, without reference to sin, one may justify a rule which permits a person to kill another in order to prevent the other from killing him. Similarly, one may justify a rule which does not permit a person to kill another, but imposes criminal liability, where the killing is committed in order to prevent the other from stealing goods. Pope Alexander III's decision, however, introduces two additional factors.

First, the killer is a cleric, indeed, a monk. It was a firm principle of canon law that a cleric who commits a criminal act commits a greater sin than a layman who commits the same criminal act. Moreover, a monk is not an ordinary cleric but one who has "died to this world" and undertaken a life of perfection. He is therefore held to still higher standards.

Second, the ordinary rule justifying homicide when committed in necessary defense of one's own life is subject to an important qualification introduced by the canonists: one who defends himself must not have wrongfully created the danger from which he seeks to escape by violent means. This was viewed in legal terms as "preceding guilt," but the legal fiction is obvious since the alleged crime is not the wrongful creation of a danger of a subsequent attack but rather the homicide beyond the limits of justifiable self-defense. An analogy may be made with the rule that one who, while in a drunken stupor, kills another may nevertheless be liable for murder since he is not excused by voluntary intoxication. Judged on the basis of external indicators, such a person should be liable not for intentional homicide but for intentionally drinking with knowledge that he might fall into a drunken stupor and kill someone. If by a fiction he is convicted, however, of intentional homicide -- though he had no intent to kill -- one is justified in saying that the "real crime" is the sin of drunkenness.

The canon lawyers invented a word to distinguish the quality of legal sinfulness from legal guilt, that is, from the guilt implicit in the legal tests of guilt, such as gravity of the evil act, intent to commit it, proximate causation. They had taken the word "guilt" from the Roman legal term culpa. But the quality of sinfulness of a person who committed a criminal sin they described by a new term, contemptus, which, though never defined, was used to signify contempt, scorn, defiance, obstinacy, pre­

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sumptuousness, or, from the opposite point of view, pride or exaltation of self. Thus Adam's sin was self_exaltation, which manifested itself in contemptuous defiance of God's law. 50_

In emphasizing the subjective factors of criminal responsibility, the canonists used distinctions that had been made in the earlier Roman legal science, but they developed those distinctions into complex and elaborately articulated concepts. Such Roman terms as impulabilitas ("Imputability"), culpa ("guilt" or "fault"), and dolus ("malicious intent," "willfulness") were systematically analyzed in terms of the precise state of mind of the actor (subjective aspect) and of the detailed circumstances of the act (objective aspect). Roman criminal law, in contrast, especially in the earlier period but also at the time of Justinian, was not greatly concerned with the moral quality of the specific criminal act; it was concerned, rather, with what is called today the protection of interests and the enforcement of policies. Much of the Roman law of crimes was elaborated by analogy to rules of property, contract, and tort. In the postclassical period, as imperial power increased, the kinds of misconduct to which imperial punishment was applicable also increased, as did the severity of criminal sanctions. Yet this development was not accompanied by an emphasis on the punishment of immorality (sin) as such. It was in the Western monastic penitentials that moral indignation and moral reform first became a matter of central legal concern, and it was on the monastic practice of "minute and detailed analysis of the circumstances of the sin... [and] the precise investigation in any given case of the intention... and of the external circumstances of the act," that the canonists of the late eleventh and the twelfth centuries founded their doctrines of the subjective and objective aspects of crime. ⁵¹

Both the unity and the complexity of the new canon law of crimes are striking. Here, on the one hand, was an integrated theory of criminal law which both supported and explained the practice of the church in disciplining its own army of clergy and in maintaining moral and ideological standards among the laity as well. Here also, on the other hand, were complex distinctions between divine law (including divine criminal law) and human law; in human law between ecclesiastical law and secular law; and in ecclesiastical law between the sin and the crime of each criminal sin. Moreover, the most burning distinction of all, both from a theoretical and from a practical point of view, was the one between the church's role in disciplining its own army of clergy and its role in maintaining moral and ideological standards among the laity. The clergy were subject to trial in ecclesiastical courts for any type of crime. Murder, theft, arson, assault -- indeed, any act proscribed by any secular authority, whether tribal or local or feudal or royal or imperial -- might fall within the competence of the ecclesiastical courts if committed by a cleric. Wholly apart from the technical questions of con­

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current jurisdiction, every serious breach of the peace could be either a secular crime or an ecclesiastical crime if it was committed by a member of the clergy. Undoubtedly this is to be explained politically: the church as a political_legal entity sought to maintain control over its functionaries. It is also to be explained theologically and ethically, or, as would be said in a later age, ideologically: the clergy were the elite, and what for a layman might be merely a breach of the peace might be for a cleric a breach of a still higher obligation.

Whatever explanation is adopted, however, there was a serious practical legal question for the church: was the definition of "secular" crimes -- murder, theft, arson, and the like -- committed by clerics to be left to the secular authorities, or was the church to supply its own definitions of such crimes? The answer to this question adds another dimension to the analysis of the relation between crime and sin. The church did not attempt to define particular secular crimes. It did, however, give its own definitions of the conditions under which secular crimes became criminal sins when committed by clergy; for example: when they were of sufficient moral gravity and sufficient vexatiousness to the church, when they were committed intentionally, when they proximately caused the prohibited result, when they were not justified by self-defense or one of various other justifications, when they were not excused by official authorization or one of various other privileges, and when they manifested the contemptus of the accused.

The relevance and materiality of the inquiry into sinfulness becomes still more apparent when one recalls that the chief sanctions imposed by ecclesiastical courts upon clergy were degradation (that is, permanent deprivation of all ecclesiastical offices and rights), deposition from particular ecclesiastical offices, suspension from celebration of the sacraments, alms, amends to injured persons, certain exercises of piety such as fasting and pilgrimage, and for the very worst offenders, excommunication. Excommunication could take a variety of forms, ranging from exclusion from participation in the sacraments to total exclusion from the church (which was equivalent to total ostracism). However, the ecclesiastical court could suspend the penalty of an excommunication on condition that the offender make good in any of a variety of ways the harm which he had caused -- including compensation to the victim as well as charitable acts such as gifts to the poor or a pilgrimage to a holy shrine.

Thus, if one thinks only of the church's jurisdiction over the clergy, it is the "crime" side rather than the "sin" side of the canon law of crimes that is the more striking.

With respect to the other part of ecclesiastical criminal jurisdiction, that is, jurisdiction over the laity, the church as a matter of its own affirmative policy (and not as the result of any diffidence on its part)

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asserted only a restricted competence. Generally speaking, violence among the laity was to be controlled by secular criminal law; that, above all, was what the secular authority was for. Laymen were criminally liable in ecclesiastical courts only for acts falling roughly within the following categories: heresy, sacrilege, sorcery, witchcraft, usury, defamation, certain sexual and marital offenses (homosexuality, adultery, and others), desecration of religious places by theft or otherwise, and assaults upon clerics. In other words, the church insisted on its competence over certain types of crimes of laymen involving strong moral and ideological elements and (usually) no violence, as well as violent crimes against church property and clergy. Once again, the element of sinfulness in the offense was a very important basis for the church's claim to jurisdiction over it.

Also with regard to the laity, the ecclesiastical sanctions were more moral and economic than physical: alms, amends, fasting, good works, and ultimately excommunication, as well as excommunication suspended on condition that the offender compensate victims, perform charitable acts or works of piety, and so on. Indeed, the principle of reparation led the canon law to make some compromises with the principle of sinfulness: a financial liability was sometimes imposed upon innocent third parties related to the guilty ones -- heirs, families, corporations, and associations -- especially in cases where economic interests of the church had been criminally infringed.

The Western law of crimes emerged from a belief that justice in and of itself, justice an sich, requires that a violation of a law be paid for by a penalty, and that the penalty should be appropriate to the violation. The system of various prices to be paid for various violations -- which exists in all societies -­was thought to justify itself; it was justice -- it was the very justice of God. This idea was reflected not only in criminal law but in all branches of the new canon law from the twelfth century on, and it was reflected more and more in the various branches of the new secular legal systems that began to develop contemporaneously. Contracts, it was said, must be kept, and if they were not, a price must be paid for their breach. Torts must be remedied by damages equivalent to the injury. Property rights must be restored by those who had violated them. These and similar principles became so deeply embedded in the consciousness -- indeed, in the sacred values -- of Western society that it became hard to imagine a legal order founded on different kinds of principles and values. Yet contemporary non-Western cultures do have legal orders founded on different kinds of principles and values, and so did European culture prior to the eleventh and twelfth centuries. In some legal orders, ideas of fate and honor prevail, of vengeance and reconciliation. In others, ideas of covenant and community dominate; in still others, ideas of deterrence and rehabilitation.

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Western concepts of law are in their origins, and therefore in their nature, intimately bound up with distinctively Western theological and liturgical concepts of the atonement and of the sacraments. The new church holiday, All Souls' Day, introduced in the eleventh century, symbolized Western man's vision of the Last Judgment as a universal "Law Day," when all souls that have ever lived are to come before Christ the Judge to account for their sins and to be eternally convicted or acquitted. On this foundation, there was built a new conception of purgatory: baptized Christians who had died penitent could be assured that their natural propensity to sin was already forgiven, and that their actual sins would be fully expiated by proportional punishment in this life and the next, prior to the final day. Christ, in this conception, was no longer seen primarily as the Judge but as the divine Brother whose sacrifice on the cross served to reconcile God and man. The new emphasis on atonement was linked, in turn, with a new symbolism in the celebration of the sacrament of the eucharist: the performance of certain acts and the utterance of certain words by the priest were considered to effectuate the transformation of the bread into the spiritual body of Christ. Thus the atonement, with its paradoxical consequence of divine forgiveness and divine punishment, was repeatedly reenacted and incorporated in the lives of the faithful. With divine justice so understood, it seemed to be a natural step to create a parallel concept of human justice. As God rules through law, so ecclesiastical and secular authorities, ordained by him, declare legal principles and impose appropriate sanction and remedies for their violation. They cannot look directly into men's souls, as God can, but they can find ways to approximate his judgment.

Yet the foregoing analysis is subject to an important qualification. The steps in the derivation of Western jurisprudence from the theology of the eleventh and twelfth centuries were not so natural as they may have seemed to those who took them. The movement from Anselm to Abelard to Gratian was at every stage a product not of reason alone but of the tension between reason and faith, the scientific and the mystical, the legal and the visionary. Anselm's own faith in reason was accompanied by a profound piety and a poetic awareness of grace. He said that reason would only prove what faith already knew, and that his analysis "by reason alone" was intended for intellectual "delight." Similarly, Abelard the skeptical scholastic was at the same time Abelard the devout believer as well as the passionate lover and popular love-song writer of Europe. Gratian's great legal treatise was itself filled with the most imaginative mythological devices for reconciling the irreconcilable -- for the sake of justice and the greater glory of God.

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When one thinks of the twelfth century as the great century of the construction of legal institutions and legal concepts, one must think also of St. Bernard of Clairvaux, archenemy of Abelard, whose saintliness was as renowned throughout Western Christendom as Abelard's adventures were notorious. In 1129 at the council of Reims, presided over by Pope Innocent II, Bernard denounced the study of Roman law the only kind of law then being studied systematically, since Gratian's

treatise (which introduced canon law into the university curriculum) was still a decade away __ and the council prohibited monks from studying it. (Although this prohibition was repeated at the Council of Clermont in 1130 and the Council of Tours in 1163, Roman law continued to be widely taught to nonmonks and even to some monks.) Bernard also denounced the legalism of the papal court and called for a return to spirituality. Modern Eastern Orthodox theologians regard Bernard as having been an ally at a time when the predominant voices in Western theology were hostile to their beliefs.

One cannot understand Abelard without Bernard, or Bernard without Abelard. Nor can one understand the fundamental change in theology and in jurisprudence which took place in the West in the late eleventh and the twelfth centuries without recognizing that it took part of its character from the more mystical and romantic tendencies of the age. These tendencies were symbolized not only by the lives and teachings of men such as St. Bernard but also by the cult of the Virgin Mary (who, above all, would intercede with the Supreme Judge, for mercy's sake, in behalf of sinners) ⁵² and by the rise of chivalry and courtly love. In the law itself, mercy asserted itself as a principle under the Graeco-Roman name aequitas ("equity"). In "canonical equity" the rigor of the strict law was to be mitigated in exceptional cases where good faith, honesty, conscience, or mercy so required. ⁵⁴

The struggle and tension between rational, scientific, and formalist attitudes, on the one hand, and mystical, poetic, and charismatic attitudes, on the other, help to explain why it took three generations for the new jurisprudence to establish itself and centuries more for it to run its course, and why ultimately it was in turn challenged by subsequent revolutions.

Behind these competing attitudes there stood the revolutionary subdivision of Western society into two political realms, the ecclesiastical and the secular, and the further subdivision of the secular realm into royal, feudal, urban, and other polities. The belief in a God of justice who operates a lawful universe, punishing and rewarding according to principles of proportion, mercifully mitigated in exceptional cases, corresponded to the belief in a complex social unity, Christendom, in which the dialectic of interacting realms and polities was regulated by a similar kind of justice-based-on-law and law-based- on-justice, with mercy play­

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ing an exceptional role. Moreover, behind the complex dialectical unity in space stood a historical dialectic in time -- a revolutionary break between ancient and modern and an evolutionary development of the modern. As each man moved through this life into purgatory, and through purgatory to the Last Judgment, reaping the rewards and punishments of his choices between good and evil, so the various communities in which he lived moved through time toward the fulfillment of their respective destinies. And their movement, too, was responsive to law. This, indeed, was the fundamental concept of the Western legal tradition to which the theological metaphors and analogies gave birth -the concept of a society that has the power to transform itself in time by the rapid and continuous infusion of divine and natural law into ecclesiastical and secular legal institutions.

In the sixteenth century and thereafter, the legalism of the Roman Catholic Church was subjected to sharp attack by various forms of Protestantism. Martin Luther denounced the concept of a visible corporate church united by law; he burned the books of canon law, partly in order to symbolize his belief that the true church can have no legal character whatever, that it is an invisible communion of the faithful.

Nevertheless, Luther also had a passionate belief in the value of law, that is, the secular law of the Prince, the law of the State, which he simply assumed would be the law of a Christian Prince. Thus the Roman Catholic belief in the infusion of divine and natural law into legal institutions was carried on by Lutheranism, but only into secular legal institutions and not into ecclesiastical. The church henceforth appeared as a purely spiritual community coextensive with a particular secular order, whereas between the eleventh and fifteenth centuries many secular orders had coexisted and interacted within the una sancta ecclesia. Yet for Protestantism, in both its Lutheran and Calvinist forms, God remained a God of justice, and the body of ecclesiastical and secular law of "medieval" Europe (as it came to be called in the sixteenth century) was to a large extent carried over into the law of the "modern state.

With the transfer of the principal lawmaking and law-enforcing functions to the sole jurisdictions of the national state, the foundation was laid for the separation of jurisprudence from theology and ultimately for the complete secularization of legal thought. This did not occur at once, since the predominant system of beliefs throughout the West remained Christian. It is only in the twentieth century that the Christian foundations of Western law have been almost totally rejected.

This twentieth-century development is a historical consequence of the Western belief, of which St. Anselm was the first exponent, that theology itself may be studied independently of revelation. Anselm had no intention of exalting reason at the expense of faith. Yet once reason was separated from faith for analytical purposes, the two began to be separated for other purposes as well. It was eventually taken for granted that reason is capable of functioning by itself, and ultimately this came to mean functioning without any fundamental religious beliefs whatever.

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By the same token, it was eventually taken for granted that law, as a product of reason, is capable of functioning as an instrument of secular power, disconnected from ultimate values and purposes; and not only religious faith but all passionate convictions came to be considered the private affair of each individual. Thus not only legal thought but also the very structure of Western legal institutions have been removed from their spiritual foundations, and those foundations, in turn, are left devoid of the structure that once stood upon them.

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