The Concept of Secular Law
THE PAPAL REVOLUTION brought into being, for the first time, a separate, autonomous ecclesiastical state and a separate, autonomous body of ecclesiastical law, the canon law of the church.
By the same action it brought into being, for the first time, political entities without ecclesiastical functions and nonecclesiastical legal orders. The papal party gave the names "temporal" (time-bound) and "secular" (worldly) to these other political entities and their law.The reduction of the sacral quality of secular government was linked to the concept of the nonecclesiastical polities and their legal orders as being many and diverse, rather than one. The new canon law was one, even as the new ecclesiastical polity was one; but the secular law was manifold, corresponding to the various types of secular polities: imperial, royal, feudal, manorial, mercantile, urban. These new types of polities required new types of law, if only because their religious functions, their "spiritual" aspects, had fallen into the hands of a separate and independent organization which existed universally and whose head was in Rome.
The use of the word spiritual to characterize the law of the church was intended to signify a dimension of sanctity which was lacking in the time-bound or worldly law of the nonecclesiastical realms. Nevertheless, the secular order, including secular law, was no longer considered to be fundamentally chaotic or aimless. It was unredeemed; but it was redeemable. It was capable of being regenerated. Like ecclesiastical law, secular law was considered to be a reflection, however imperfect, of natural law and, ultimately, of divine law. It was subject to reason and conscience. It was rooted in divine revelation. Indeed, the very division between the ecclesiastical and the secular presupposed the mission of the church to reform the world, and consequently the mission of all Christians (but especially those in holy orders) to help make imperfect secular law conform to its ultimate purpose of justice and truth.
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Secular law was supposed to emulate the canon law. All the various secular legal systems____________________________________________________ feudal,
manorial, mercantile, urban, royal _adapted to their own uses many basic ideas and techniques of the canon law, if only because the canon law was more highly developed and was available for imitation. This was inevitable, since in the twelfth and thirteenth centuries most lawyers, judges, and other professional advisers and officers of secular legal institutions were clerics and either had been trained in canon law or were generally familiar with its basic features. At the same time, the secular authorities resisted the encroachments of the ecclesiastical authorities upon the secular jurisdiction; and for that reason, too, they sought to achieve for secular law the cohesion and sophistication of the canon law.
Developing partly in emulation of and partly in rivalry with the canon law, each of the various types of secular law eventually came to be treated -- though in widely varying degrees -- as a legal system, that is, as an integrated and organically developing body of legal institutions and concepts. Yet in comparison with the canon law, the new secular legal systems were much less directly connected with the major political and intellectual events and movements of the time and much more directly connected with diffuse social and economic changes. Feudal law and manorial law, to a somewhat lesser extent mercantile and urban law, and to a still lesser extent royal law were more rooted in custom, and therefore emerged more gradually, than the canon law of the church. The development of the class consciousness of the feudal nobility, and the legalization of its relations with the peasantry, proceeded much more slowly and invisibly than the development of the class consciousness of the clergy and the legalization of its relations with the secular authorities. In addition, the emergence of such "institutions" as commercial markets and urban self-government differed in character from the emergence of such "institutions" as universities and ecclesiastical courts.
The differences had to do in part with the kinds and numbers of people who were directly affected. Secular law emerged "on the ground." It was less programmatic. Partly for that reason its growth was much less clearly marked. By the time university- trained jurists began to "summarize" feudal law or urban law or royal law, it was already there.Indeed, the first systems of secular law did not need to be portrayed in textbooks or taught in university courses in order to be accepted as integrated, ongoing, autonomous bodies of law. Scholarly books on the various branches of secular law helped, to be sure, and they were forthcoming, although not in anything like the quantity and quality of the legal literature produced by the canonists and Romanists. Also, problems that arose in the various types of secular law often found their way into university law courses, although none of those types of law ever attained the dignity of being taught as an independent subject in the university curriculum. By contrast, legal scholarship was indispensable to the creation of the modern system of canon law; without textbooks and courses it was unimaginable, since an articulated theory was a necessary part of its subject matter and an academically trained profession was essential to its practice.
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Thus the concept of secular law, as it developed in the late eleventh and twelfth centuries, was a concept of various emerging legal systems, each limited in scope to particular types of temporal affairs, growing out of custom, imperfect, yet divinely guided and subject to correction in the light of reason and conscience.