The Origin of the Western Legal Tradition in the Papal Revolution
Among the peoples of western Europe in the period prior to he eleventh century, law did not exist as a distinct system of regulation or as a distinct system of thought. Each people had, to be sure, its own legal order, which included occasional legal enactments by central authorities as well as innumerable unwritten legal rules and institutions, both secular and ecclesiastical.
A considerable number of individual legal terms and rules had been inherited from the earlier Roman law and could be found in the canons and decrees of local ecclesiastical councils and of individual bishops as well as in some royal legislation and in customary law. Lacking, however, in both the secular and the ecclesiastical spheres, was a clear separation of law from other processes of social control and from other types of intellectual concern. Secular law as a whole was not "disembedded" from general tribal, local, and feudal custom or from the general custom of royal and imperial households. Similarly, the law of the church was largely diffused throughout the life of the church -- throughout its structures of authority as well as its theology, its moral precepts, its liturgy -- and it, too, was primarily local and regional and primarily customary rather than centralized or enacted. There were no professional judges or lawyers. There were no hierarchies of courts.Also lacking was a perception of law as a distinct "body" of rules and concepts. There were no law schools. There were no great legal texts dealing with basic legal categories such as jurisdiction, procedure, crime, contract, property, and the other subjects which eventually came to form structural elements in Western legal systems. There were no developed theories of the sources of law, of the relation of divine and natural law to human law, of ecclesiastical law to secular law, of enacted law to customary law, or of the various kinds of secular law -- feudal, royal, urban -- to one another.
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The relatively unsystematized character of legal regulation and the relatively undeveloped state of legal science were closely connected with the prevailing political, economic, and social conditions. These included the predominantly local character of tribal, village, and feudal communities; their relatively high degree of economic self_sufficiency; the fusion of authorities within each; the relative weakness of the political and economic control exercised by the central imperial and royal authorities; the essentially military and religious character of the control exercised by the imperial an d royal authorities; and the relative strength of informal community bonds of kinship and soil and of military comradeship.
In the late eleventh, the twelfth, and the early thirteenth centuries a fundamental change took place in western Europe in the very nature of law both as a political institution and as an intellectual concept. Law became disembedded. Politically, there emerged for the first time strong central authorities, both ecclesiastical and secular, whose control reached down, through delegated officials, from the center to the localities. Partly in connection with that, there emerged a class of professional jurists, including professional judges and practicing lawyers. Intellectually, western Europe experienced at the same time the creation of its first law schools, the writing of its first legal treatises, the conscious ordering of the huge mass of inherited legal materials, and the development of the concept of law as an autonomous, integrated, developing body of legal principles and procedures.
The combination of these two factors, the political and the intellectual, helped to produce modern Western legal systems, of which the first was the new system of canon law of the Roman Catholic Church (then regularly called for the first time jus canonicum). It was also at that time divided into "old law" (jus antiquum), consisting of earlier texts and canons, and "new law" (jus nomm), consisting of contemporary legislation and decisions as well as contemporary interpretations of the earlier texts and canons. Against the background of the new system of canon law, and often in rivalry with it, the European kingdoms and other polities began to create their own secular legal systems.
At the same time there emerged in most parts of Europe free cities, each with its own governmental and legal institutions, forming a new type of urban law. In addition, feudal (lord-vassal) and manorial (lord-peasant) legal institutions underwent systematization, and a new system of mercantile law was developed to meet the needs of merchants engaged in intercity, interregional, and international trade. The emergence of these systems of feudal law, manorial law, mercantile law, and urban law clearly indicates that not only political and intellectual but also social and economic factors were at work in producing what can only be called a revolutionary development of legal institutions. In other words, the creation of modern legal systems in the late eleventh, twelfth, and-86-
early thirteenth centuries was not only an implementation of policies and theories of central elites, but also a response to social and economic changes "on the ground."
Religious factors were at work, as well. The creation of modern legal systems was, in the first instance, a response to a revolutionary change within the church and in the relation of the church to the secular authorities. And here the word "revolutionary" has all the modern connotations of class struggle and violence. In 1075, after some twenty-five years of agitation and propaganda by the papal party, Pope Gregory VII declared the political and legal supremacy of the papacy over the entire church and the independence of the clergy from secular control. Gregory also asserted the ultimate supremacy of the pope in secular matters, including the authority to depose emperors and kings. The emperor -Henry IV of Saxony -- responded with military action. Civil war between the papal and imperial parties raged sporadically throughout Europe until 1122, when a final compromise was reached by a concordat signed in the German city of Worms. In England and Normandy, the Concordat of Bec in 1107 had provided a temporary respite, but the matter was not finally resolved there until the martyrdom of Archbishop Thomas Becket in 1170.
The great changes that took place in the life of the Western Church and in the relations between the ecclesiastical and the secular authorities during the latter part of the eleventh and the first part of the twelfth centuries have traditionally been called the Hildebrand Reform, or the Gregorian Reform, after the German monk Hildebrand, who was a leader of the papal party in the period after 1050 and who ruled as Pope Gregory VII from 1073 to 1085. However, the term "Reform" is a serious understatement, reflecting in part the desire of the papal party itself -- and of later Roman Catholic historians -- to play down the magnitude of the discontinuity between what had gone before and what came after. The original Latin term, reformatio, may suggest a more substantial break in continuity by recalling the sixteenth-century Protestant Reformation. Another term used to denote the same era, namely, the Investiture Struggle, is not so much an understatement as an oblique statement: by pointing to the struggle of the papacy to wrest from emperor and kings the power to "invest" bishops with the symbols of their authority, the phrase connects the conflict between the papal and imperial (or royal) parties with the principal slogan of the papal reformers: "the freedom of the church." But even this dramatic slogan does not adequately convey the full dimensions of the revolutionary transformation, which many leading historians have considered to be the first major turning point in European history, and which some have recognized as the beginning of the modern age. 1What was involved ultimately was, in Peter Brown's words, "the disengagement of the two
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