The Rise of Modern Legal Systems

As the Papal Revolution gave birth to the modern Western state, so it gave birth also to modern Western legal systems, the first of which was the modern system of canon law.

From early centuries on, the church accumulated a great many laws -- canons (that is, rules) and decrees of church councils and synods, decrees and decisions of individual bishops (including the Roman pontiff), and laws of Christian emperors and kings concerning the church.

These authoritative writings, in which the canons were merged, had contributed to the gradual establishment throughout Western Christendom, between the sixth and tenth centuries, of a common body of

115- theological doctrine, a common worship service (in Latin), a common set of rules concerning major sins (such as killing, breaking oaths, stealing), and a common ecclesiastical discipline and structure. Everywhere priests heard confessions and dispensed the sacraments to their flocks; everywhere bishops ruled priests, consecrated churches, and arbitrated disputes within their respective dioceses; everywhere bishops were responsible to their primates (metropolitan bishops of provinces and regions), and all bishops owed loyalty to the Bishop of Rome as first among equals. There was, however, no book or series of books in existence in the year 1000 which attempted to present the whole body of ecclesiastical law or, indeed, systematically to summarize any part of it.

The decentralized character of ecclesiastical law prior to the late eleventh century was closely related to the decentralized character of the political life of the church. As a rule, bishops were more under the authority of emperors, kings, and leading lords than of popes; and even in those spiritual matters in which secular authorities did not intervene, a bishop usually had a considerable autonomy within his own diocese. ³⁷The universality of the church did not rest primarily on a political or legal unity but on a common spiritual heritage, common doctrine and worship, and a common liturgy. Such political and legal unity as it had was connected, above all, with the preservation of its spiritual universality. In this respect the Western Church was like the Eastern Church. Its law, being largely interwoven with theological doctrine and with the liturgy and the sacraments, was concerned only secondarily with organizational matters and the authority of bishops, and hardly at all with rules of property law, crime and tort, procedure, inheritance, and the like. In these secondary and tertiary concerns the law of the church was often wholly merged with secular law, and secular law was itself largely diffused in political, economic, and social custom.

In the wake of the Papal Revolution there emerged a new system of canon law and new secular legal systems, together with a class of professional lawyers and judges, hierarchies of courts, law schools, law treatises, and a concept of law as an autonomous, integrated, developing body of principles and procedures. The Western legal tradition was formed in the context of a total revolution, which was fought to establish

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Map 2.

-117- "the right order of things," or "right order in the world." 38 _" Right order" signified a new division of society into separate ecclesiastical and secular authorities, the institutionalization of the ecclesiastical authority as a political and legal entity, and the belief in the responsibility of the ecclesiastical authority to transform secular society.

The dualism of ecclesiastical and secular legal systems led in turn to a pluralism of secular legal systems within the ecclesiastical legal order and, more specifically, to the concurrent jurisdiction of ecclesiastical and secular courts. Further, the systematization and rationalization of law were necessary in order to maintain the complex equilibrium of plural competing legal systems. Finally, the right order of things introduced by the Papal Revolution signified the kind of systematization and rationalization of law that would permit reconciliation of conflicting authorities on the basis of synthesizing principles: wherever possible, the contradictions were to be resolved without destruction of the elements they comprised.

To summarize, the new sense of law and the new types of law that emerged in western Europe in the wake of the Papal Revolution were needed as means: (1) to control by central authorities a widely dispersed population with diverse group loyalties; (2) to maintain the separate corporate identity of the clergy and add a new legal dimension to their class consciousness; (3) to regulate relations between competing ecclesiastical and secular politics; (4) to enable secular authorities to implement in a deliberate and programmatic way their proclaimed mission of imposing peace and justice within their respective jurisdictions; and (5) to enable the church to implement in a deliberate and programmatic way its proclaimed mission to reform the world.

The most important consequence of the Papal Revolution was that it introduced into Western history the experience of revolution itself.

Perhaps the most dramatic illustration of the new sense of time, and of the future, was provided by the new Gothic architecture. The great cathedrals expressed, in their soaring spires and flying buttresses and elongated vaulted arches, a dynamic spirit of movement upward, a sense of achieving, of incarnation of ultimate values. It is also noteworthy that they were often planned to be built over generations and centuries.

Less dramatic but even more significant as a symbol of the new belief in progress toward salvation were the great legal monuments that were

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built in the same period. In contrast not only to the earlier Western folklaw but also to Roman law both before and after Justinian, law in the West in the late eleventh and twelfth centuries, and thereafter, was conceived to be an organically developing system, an ongoing, growing body of principles and procedures, constructed __ like the cathedrals __ over generations and centuries.

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