Summary: There is a distinct Western legal tradition, and it arose from the Papal revolution.
Method: In-depth analysis of the development of laws in Europe.
Important Insight: The Papal Revolution of the 11th century divided the religious and secular realms of Europe. This total upheaval that gave birth to the Western legal tradition. A system of law was necessary to the Western Church to maintain its new, visible, corporate legal unity under the papacy; the disembedding of cannon law from theology and liturgy, and its systematization and rationalizing, were needed as a source of legitimacy and a means of control by the central ecclesiastical authorities and also as an effective symbol of the separate corporate identity of the clergy as a whole. The new cannon law system was also essential to the maintenance of the church’s new set of relations with the various secular authorities. Relatively autonomous and rational systems of law were needed by the various secular authorities as well, in order to enable them to legitimate and effectuate their newly developing central controls and to maintain themselves in the new competition of polities. (521)
Critique: Was the Papal Revolution actually a revolution?
-This book tells the following story: that once there was a civilization called ‘Western’; that it developed distinctive ‘legal’ institutions, values, and concepts; that these Western legal institutions, values, and concepts were consciously transmitted from generation to generation over centuries, and thus came to constitute a ‘tradition’; that the Western legal tradition was born of a ‘revolution’ and thereafter, during the course of many centuries, has been periodically interrupted and transformed by revolutions; and that in the twentieth century the Western legal tradition is in a revolutionary crisis greater than any other in its history, one that some believe has brought it virtually to an end (due to a break with the individualism of the traditional law, a break with its emphasis on private property and the freedom of contract, its limitations on liability for harm caused by entrepreneurial activity, its strong more attitude toward crime, and many of its other basic postulates – springing in part from socialist revolutions, the welfare state, and massive bureaucratization, but mainly from the crisis of Western civilization (viz. the two World Wars)) (1)
-‘West’ defined geographically in contrast to both the East (re: eastern Christendom) and the rest of the world generally. (2)
-the West is not Greece and Rome and Israel but the peoples of Western Europe turning to the Greek and Roman and Hebrew texts for inspiration, and transforming those texts in ways that would have astonished their authors. [contrast with Germanic folklaw] (3)
-in this conception of West, no distinction is to be made b/w Western and modern (pre-1914), but one is to be drawn b/w Western and contemporary (post-1945) (4)
-law defined as the enterprise of subjecting human conduct to the governance of rules and other modes of governance (e.g. the casting of votes, the issuing of orders, the appointment of officials, and the handing down of judgements). Also, the law has purposes other than governance in the usual sense of the word: it is an enterprise for facilitating voluntary arrangements through the negotiation of transactions, the issuance of documents (e.g. credit instruments), and the performance of other acts of a legal nature. Law in action consists of people legislating, adjudicating, administering, negotiating, and carrying on other legal activities. (4-5)
-such a broad concept of law is needed in order to compare, within a single framework, the many specific legal systems that have existed in the West during many centuries. It is needed also in order to explore the interrelationships of these systems with other political, economic, and social institutions, values, and concepts. (5)
-to speak of a ‘tradition’ of law in the West is to call attention to two major historical facts: first, that from the late eleventh and twelfth centuries on, except in certain periods of revolutionary change, legal institutions in the West developed continuously, with each generation consciously building on the work of previous generations; second, that this conscious process of continuous development is (or once was) conceived as a process not merely of change but of organic growth.
-conscious growth does not necessarily mean deliberate movement toward particular ideal goals. It means something less than more progress, though something more than mere change or accumulation. (7)
-institutions means structured arrangements for performing specific social tasks (e.g. universities as institutions for transmitting higher education and training professionals.) (5)
-the principal characteristics of the Western legal tradition may be summarized, in a preliminary way, as follows:
1) A relatively sharp distinction is made b/c legal institutions and other types of institutions (related to religion, politics, morality, and custom). (8)
2) Connected with the sharpness of this distinction is the fact that the administration of legal institutions, in the Western legal tradition, is entrusted to a special corps of people, who engage in legal activities on a professional basis as a more or less full-time occupation.
3) The legal professionals (whether they’re called lawyers or jurists) are specially trained in a discrete body of higher learning identified as legal learning, with its own professional literature and its own professional schools or other places of training.
4) The body of legal learning in which the legal specialists are trained stands by in a complex, dialectical relationship to the legal institution, since on the one hand the learning describes those institutions but on the other hand the legal institutions, which would otherwise be disparate and unorganized, become conceptualized and systematized, and thus transformed, by what is said about them in learned treatises and articles and in the classroom.
-the first four characteristics are shared by the tradition of Roman law as it developed in the Roman Republic and the Roman Empire from the 2nd century BC to the 8th century AD and later. They are not shared, however, in many contemporary non-Western cultures, nor were they present in the legal order that prevailed among the Germanic peoples of Western Europe prior to the 11th century. Germanic law was embedded in political and religious life and in custom and morality.
5) Law is conceived to be a coherent whole, an integrated system, a ‘body’, and this body is conceived to be developing in time, over generations and centuries. (9)
6) The concept of a body or system of law depended for its vitality on the belief in the ongoing character of law, its capacity for growth over generations and centuries – a belief which is uniquely Western.
7) The growth of law is thought to have an internal logic; changes are not only adaptation of the old to the new, but are also part of a pattern of changes.
8) The historicity of law is linked with the concept of its supremacy over the political authorities. Law is binding on the state itself.
9) Perhaps the most distinctive characteristic of this tradition is the coexistence and competition with the same community of diverse jurisdictions and diverse legal systems (cannon and common law). It is this plurality that makes the supremacy of law both necessary and possible. (10)
10) There is a tension b/w the ideals and realities, b/w the dynamic qualities and the stability, b/w the transcendence and the immanence of the Western legal tradition. This tension has periodically led to the violent overthrow of legal systems by revolution. Nevertheless, the legal tradition, which is something bigger than any of the legal systems that comprise it, survived and, indeed, was renewed by such revolutions.
-working backwards, the Russian Revolution, French Revolution, American Revolution, English Revolution(the Glorious Revolution), Protestant Reformation, and the Papal Revolution all produced a new or greatly revised system of law, in the context of what was conceived as a total social transformation. (20)
-the great revolutions of Western political, economic, and social history represent explosions that have occurred when the legal system proved to rigid to assimilate new conditions (22)
-The Papal Revolution is the subject of this book. One may date the Papal Revolution from 1075 – when Gregory proclaimed papal supremacy over the entire church and ecclesiastical independence from, and superiority over, the secular power – to 1122 – when a final compromise was reached b/w the papal and the imperial authority. The repercussions, however, did not cease even then; the forces that were set in motion by these events continued to take effect for centuries. (23)
-unlike the other revolutions, the papal revolution was transnational, a revolution throughout Europe in behalf of the clergy, under the pope, against imperial, royal, and feudal domination. (24)
-nevertheless, one can tie together all of the revolutions, as national revolutions were in part directed against the Church and all of them transferred portions of the cannon law from the church to the national state, thus secularizing them. Furthermore, all the great revolutions of the west were also, by their very nature, Western revolutions, having enormous implications across the West.
-two tasks of a social theory of law: to escape from oversimplified concepts of causation and of law by stressing the interaction of spirit and matter, ideas and experience, in its definition and analysis of law; and to adopt a historiography that is appropriate to legal history rather than a historiography that is derived principally from any other kind of history – a social theory of law must confront the fact that legal systems began to be constructed in the West in the late 11th and 12th centuries, and that some of the basic characteristics of those legal systems have survived the great national revolutions of the 16th to 20th century. (44)
-The Papal Revolution had been in preparation for at least a generation. The first overt steps toward it were taken by the papal party in the 1050s and 1060s. In 1059 Pope Nicholas II, at the Synod of Rome, for the first time forbade lay investiture and established a procedure for election of popes by the cardinals, thereby taking the power to appoint the pope away from the emperor. In 1075 Pope Gregory VII threw down the gauntlet in his Dictates of the Pope. From 1076 to 1122 wars were fought in various parts of Europe b/w supporters and opponents of the papal authority and its program. Eventually, compromises were reached. Neither side was wholly victorious. (521)
-It was this total upheaval that gave birth to the Western legal tradition. A system of law was necessary to the Western Church to maintain its new, visible, corporate legal unity under the papacy; the disembedding of cannon law from theology and liturgy, and its systematization and rationalizing, were needed as a source of legitimacy and a means of control by the central ecclesiastical authorities and also as an effective symbol of the separate corporate identity of the clergy as a whole. The new cannon law system was also essential to the maintenance of the church’s new set of relations with the various secular authorities. Relatively autonomous and rational systems of law were needed by the various secular authorities as well, in order to enable them to legitimate and effectuate their newly developing central controls and to maintain themselves in the new competition of polities. (521)
-the need for legal systems was not merely a practical political one. It was also a moral and intellectual one. Law came to be seen as the very essence of faith… Law was seen as a way of fulfilling the mission of Western Christendom to begin to achieve the kingdom of God on earth (a shift to worldly concerns occurred after 1000 since there was no longer an overriding millenarian position).
-the integrated Germanic folk culture was a necessary foundation for the new program of rationalization and systematization of law. Western legalism was rooted in an earlier communitarianism. The Papal Revolution itself was only possible in a society already united as a Christian populous; the fight over who should control the church, and thus who should control ‘ideology’, presupposed the existence of a common loyalty to the church and a common faith. (528)
-secular law, including feudal and manorial law, mercantile law, urban law, and royal law, was much more rooted in custom and consequently much less subject to revision by learned jurists than cannon law. (Roman law was a different thing altogether: it was a learned law, taught in the universities, not the positive law of any jurisdiction nor generally subject to change, yet at the same time an ideal law to which all positive law was supposed to conform, and a subsidiary law that could be used to fill in gaps). Nevertheless, secular law was changed, and radically so, in the late 11th and early 12th centuries. It was changed by the decisions of secular rulers as well as by the influence of learned jurists. It was systematized and it was reformed. The church consciously set out to bring about its reform (532)
-the concept of the organic growth of law was associated with a principle of legality… This belief was rooted, first in the theological conviction that the universe itself was subject to law, second, in the duality of secular and spiritual authorities, which placed both practical and theoretical limitations upon the power of each, third in the pluralism of secular authorities w/in each kingdom and the dialectical tensions among royal, feudal, and urban polities, and fourth in the mutuality of obligations b/w superiors and inferiors in the feudal hierarchy and the acceptance of a dialectical interaction b/w central and local authorities as well as between official and popular agencies of government. (536-537)
-there are several impt differences b/w the emergence of a state-level society in the West and its emergence in other cultures; and these differences resist explanation not only by the anthropologists’ theories but also by the sociological theories of Marx and Weber: (553)
-***First, it was not ‘the state’ that first emerged in the West in the late 11th century but rather the church in the form of a state. Moreover, although the church was centralized, and had a centralized and systematized law, it only claimed to govern half of life (both cooperating with and competing against the secular authorities)… The political and legal institutions of the secular authorities gradually became centralized and systematized during the two or three centuries after the emergence of the centralized church and its systematized law.
-Second, in the principal stage of its development, dialectical tensions existed in theology, science, and law, corresponding to the dialectical tension b/w the ecclesiastical and secular political authorities.
-Third, the society was held together, and its theology, science, and law were given their logical and systemic character, in part by a unique sense of development in time, of ongoingness, of evolution – coupled with a recollection of a great revolution in the past and a premonition of a revolution in the future