Ever since the appearance of Charles Homer Haskin's classic study, The Renaissance of the Twelfth Century, scholars have known that the twelfth and thirteenth centuries experienced an extraordinary efflorescence of creativity and new cultural forms. Charles Haskins, Hastings Rashdall, F.W. Maitland, and other scholars were certainly aware of the revival of the study of law and its impact on the development of the university, and even the impact of legal studies on the church and canon law. But with the publication of Harold J. Berman's book, Law and Revolution, we were reminded as perhaps never before of the extraordinary revolutionary nature of the legal and institutional reforms that erupted and swept across Europe during this period. Professor Berman's fresh account, based on the harvest of legal scholarship since the 1930s, brings to light the centrality of the sweeping legal reforms, indeed, the revolutionary reconstruction, of all the realms and divisions of law -- feudal, manorial, urban, commercial, and royal -- and therewith the reconstitution of medieval European society. It is this great legal transformation that laid the foundation for the rise and autonomous development of modern science.

At the center of this development one finds the legal and political principle of treating collective actors as a single entity -- a corporation. Some social theorists have recognized the existence of these "new corporate actors" changes the nature of social action, creating new social and economic dynamics that must be accounted for by revised social, economic, and political theories. The emergence of corporate actors was unquestionably revolutionary in that the legal theory which made them possible created a variety of new forms and powers of association that were in fact unique to the West, since they were wholly absent in Islamic as well as Chinese law. Furthermore, the legal theory of corporations brings in its train constitutional principles establishing such political ideas as constitutional government, consent in political decision making, the right to political and legal representation, the powers of adjudication and jurisdiction, and even the power of autonomous legislation. Aside from the scientific revolution itself, and perhaps even the Reformation, no other revolution has been as pregnant with new social and political implications as the legal revolution of the European Middle Ages. By laying the conceptual foundations for new institutional forms in legal thought, it prepared the way for the two other revolutions.

It is useful to remember that the twelfth and thirteenth centuries were graced by the presence of great intellects in both Islam and Europe, so I am by no means suggesting that the great men of Arabic-Islamic civilization were gone. Insofar as natural science is concerned, it is probably true, as George Sarton concluded, that after the twelfth century, the number of significant scientific scholars in the Arabic world fell behind that of Europe. It may also be true that scholarship in general declined absolutely in the Middle Ages after this time. Nevertheless, for the twelfth and thirteenth centuries, one can find virtually an equal number of great scholars in both civilizations, as well as Chinese civilization.

The fact that natural scientific inquiry waned elsewhere during this time suggests that the great men of Arabic-Islamic civilization deliberately chose to follow another path, with all the consequences for mankind which that decision entailed. Peter Abelard's life (1079-1142) parallels that of the great al-Ghazali (1058-1111), and John of Salisbury (1120-80) was a contemporary of Ibn Rushid (Averroes, 1126-98). Although Avicenna died in 1037, the important legist, philosopher, and astronomer Nasir al-Din al-Tusi (d.1274) was a contemporary of Thomas Aquinas (1225-74). And the arch-traditionalist Ibn Taymiyya (1273-1328), along with the Egyptian theologian al-Iji (d.1355), was a contemporary of Marsilius of Padua (ca. 1280-ca. 1343) as well as William of Ockham (ca. 1285-ca.1349). Clearly, powerful intellects were busy in both civilizations following their unique but culturally conditioned agendas. While Arabic-Islamic civilization was undoubtedly intellectually richer at the outset of the High Middle Ages, at the conclusion of the era the West had effected a radical tranformation that marked a decisive turning away from the political, legal, social, and institutional forms that prevailed in the Islamic Middle East.

TBC

I agree with the thesis that the legal reforms of that era have an importance which can scarcely be overestimated for western civilization, but I have to wonder: why the hell is this guy babbling this PC nonsense about the importance of arabian civilization in those days, it is nonsensical and serves no purpose.

That was taken out of a comparative study of Western, Islamic, and Chinese science in the Middle Ages and Early Modern Era. I am not finished with it yet. :)

Legal history interests me a great deal. Looking forward to reading the entire thing you're gonna post.

The Development of Modern Western Law

Although there were parallels in the organization of state and society between the civilization of Islam and that of the European West, there were also fundamental differences not only in law but also in custom and tradition. While Roman law could not have been unknown to the Muslims and Turks who traded with the Italians and Byzantines, there is no evidence that Islamic legists desired or actually ever borrowed the legal principles, concepts, or practices of the Justinian Code. Unlike the European medievals, they never considered the possibility that Roman law as codified in the ancient law books could be a source of legal principles and ideas, since the Quran and the sunna were the complete record of God's commands. While local custom in the Middle East was granted tacit recognition by the sunna, the lawyers and legists (qadis and fuqaha) were clear that the operative law was that of the shari'a. But most important of all, the temporal ruler of Islam, whether caliph -- successor to the Prophet -- or emir was assumed to be the ruler of the whole Muslim community and the enforcer of the Islamic legal order. There was no conceptual distinction between the sacred and the secular, the spiritual and the temporal. THe law of the realm consisted precisely of those commands the believer must follow if he was to pass the reckoning on the day of judgment.

In the civilization of the West, the situation was significantly different. The kings of Europe and their defenders by custom and legal precedent had often asserted their claim to be a source of law as well as guardians of the spiritual body of Christ, the Christian community of the faithful. Since the adoption of Christianity by the Romans, however, the church had its own hierarchy of officers and officials who claimed exclusive monopoly of the religious realm, and this extended in various ways into the temporal order. From biblical times the clash between religion and world, between the demands of Christ and the demands of Caesar, had been acknowledged, debated, and repeatedly fought over. On the eve of the legal renaissance of the twelfth and thirteenth centuries, the great legal historian Ernst Kantorowicz pointed out, "the king was the fountain of justice; he was supposed to interpret the law in the case of obscurity; the courts were still the 'king's courts' and the king was still considered the judge of his realm whereas the judges, who derived their power from him, acted only as delegate judges. From Roman law the legists were all too familiar with the stock phrase, "What has pleased the Prince, has the force of law," although Harold Berman suggests that the Justinian Code contained an equally pertinent if not so well-known phrase suggesting that rulers also ought to be obligated to follow the law: "It is a statement worthy of the majesty of the reigning prince," the code reads, "for him to confess to be the subject of the laws; for Our authority is dependent upon that of the law."

The final drama of this period which ultimately established the institutional fabric of modern society, was therefore the great clash between church and state in the investiture controversy (1050-1122), largely won by the papal authorities. Above all else this battle was an intellectual and legal contest that produced the first modern system of law assumed to be universal in scope. This was the canon law, whose first definitive statement was the Decretum, issued by the Italian monk Gratian in 1140. To produce this monument of legal scholarship and institutional architectonics, Gratian had to work through a massive collection of disparate documents whose legal import were both questionable and frequently contradictory.

The body of materials that lay at hand in Europe between the fifth and tenth centuries was derived from many sources. Much of church law was derived from the Bible, both Old Testament and New. But since the adoption of Christianity by the Emperor Constantine in 313, Christianity had become wholly emeshed in the Roman legal order, a practical and administrative order very different from the Semitic sources of Judaism and early Christianity, as well as Hellenism. While the Roman Empire had indeed collapsed in the fifth century, Harold Berman points out that "in the clan-dominated culture of Western Europe the Church was considered to be a bearer of Roman law, and the eigth-century 'code' of the Ripuarian Franks, the Lex Ribuaria, contained the provision: Ecclesia vivit jure Romano ('the Church lives by Roman Law'). This meant that to the extent each person carried the law of his clan with him, and was to be judged according to it wherever he went, the church was deemed to carry with it the Roman law.

Church law itself, because it had a dual charge of administering both the temporal and the spiritual domains, contained regulations regarding church finances and property, rules for specifying ecclesiastical authority, regulations governing sacred and secular institutions, regulations for dealing with crime and punishment, as well as rules for marriage and family life. In addition, in contained elements of Germanic folk law as well as various rulings of early church councils and statements (decretals) by church fathers. Not surprisingly, there was also elements of church liturgy and theology interlaced within this whole body of material, which could hardly be called a system of law prior to the twelfth century. As Berman points out, "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 schools. There were no great legal texts dealing with basic legal categories such as jurisdiction, procedure, crime, contract, property, and 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, or 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.
Perhaps the greatest spur to the development of the systems of modern law was the discovery in Italy of a manuscript containing the Justinian civil law -- the corpus juris civilis -- toward the end of the eleventh century. Although Roman civil law had long since ceased to be the law of everyday practice, the sheer magnificence, the range of issues, and the integral construction of the code outshone anything available in Europe during this time. Consequently, it quickly attracted a great deal of attention. By 1087 the great Romanist Irnerius was ensconced at the University of Bologna and was regularly commenting upon the teaching of Roman civil law. What is highly significant is the fact that Bologna was largely a lay institution of higher learning, as it had been founded by students. It was a place dominated by legal studies carried on by laymen, not canonists, for the canon law had to wait until 1140 for the appearance of Gratian's "Concordance of Discordant Canons" (Concordia discordantium canorum) to give it a self-definition as coherent as the Roman law. The birth of the new science of law involved three separate elements: a body of legal materials to work with; a new method of analysis; and a place in which to carry on these new legal studies, that is, the universities. It is also useful to note here a major deviation from the path of intellectual, legal, and institutional development in the Islamic world: the commitment in Bologna at the outset to teach the secular law, that is, the Roman corpus juris civilis, was a major concession to the authority of the secular law. Only later did Bologna become a center recognized for the teaching of ecclesiastical (canon) law.

In the Islamic world, by way of contrast, aside from being pious endowments (and lacking the legal attributes of a corporation), the Islamic colleges (madrasas) allowed only the teaching of Islamic law (the shari'a) -- not Roman, Greek, Judaic, or customary law -- the only one school (madhhab) of Islamic law was permitted in a single madrasa during the period. Later that changed. In the end this early legal exclusivity prevented a systemization of the four schools of law into a single canon.

What took place in the eleventh, twelfth, and the early thirteenth centuries in Western Europe was a radical transformation that created, among other things, the very concept of a legal system with its many levels of autonomy and jurisdiction and its cadres of legal experts. A profound change took place that dramatically altered "the very nature of law as a political institution and an intellectual concept." The change was so dramatic, so complete and far ranging that it "can only be called a revolutionary development of legal institutions." It was, morever, "not only an implementation of policies and theories of central elites, but also a response to social and economic changes 'on the ground.'" It was not only an intellectual revolution but a social, political, and economic revolution whereby new legal concepts, entities, procedures, powers, and agencies came into being and transformed social life.

What happened according to Cantor is the patchwork of feudal and "free city/town" juristictions all came over the purview of royal law.

I am not finished yet. This book deals specifically with the rise of modern science. It is a comparative study of the West, Islam, and China.

The Papal Revolution

At the heart of this transformation is what has been called the papal revolution (ca. 1072-1122). This was the struggle by means of which the papal authority of the Christian church declared itself free from secular control, above all, free from interference in the appointment and governance of the clergy. Prior to this time, clergy at all levels, located in religious offices, in cloisters, abbeys, and monasteries scattered all over western Christendom, had often been chosen and appointed by secular and local officials. With the papal revolution all of these extrareligious influences were drastically curtailed. Put differently, the papal revolution withdrew the spiritual authority that emperors, kings, and princes had previously claimed. Though this seems a rather minor adjustment, the fact is that the papal revolution, by working out a new legal system deeply indebted to Roman concepts (reworked in the light of church law and European customary law), placed restrains on the prerogatives of the secular authorities and, in the process, created the "first modern Western legal system." What is more, this revolutionary adjustment "gave birth to the modern Western state -- the first example of which, paradoxically, was the church itself." This outcome is paradoxical because we are accustomed to thinking of the modern state as a secular entity. Nevertheless, Harold Berman argues that the church from this time forward exercised all the legal functions that we attribute to the modern state:

It claimed to be an independent, hierarchial, public authority. Its head, the pope, had the right to legislate, and in fact Pope Gregory's successors issued a steady stream of new laws . . . The church also executed its laws through an administrative hierarchy, though which the pope rules as a modern sovereign ruler though his or her representatives. Further, the church interpreted its laws, and applied them, through a judicial hierarchy culminating in the papal curia in Rome.
Given all these functions exercised by the church, it can be said that it "exercised the legislative, administrative, and judicial powers of a modern state," including the levying of taxes in the form of tithes and other fees.

For our purposes the most significant result of this revolution was the declaration of the church's legal autonomy, thereby creating the very idea of separate and autonomous legal jurisdictions between the religious and secular domains. When, through the battles of the investiture controversy, the church in the person of Pope Gregory VII (r.1073-85) "declared the legal supremacy of the clergy, under the pope, over all secular authorities," it created a new and autonomous legal order. It asserted a right to jurisdiction, a right to hear all cases within its domain, a right to legislate new laws, and a commitment to conduct its affairs according to the law. In effect, it took a giant step toward becoming the first Rechtsstaat, a state ruled by law. While its zeal in the service of the faith was not always contained within the freely consensual framework of the principles and procedures of the canon law, it did leave a "legacy of governmental and legal institutions, both ecclesiastical and secular, for resolving . . . tensions and maintaining an equilibrium throughout the system." It established the model by which secular states could organize their affairs, establish courts, elect officials, and enact their own laws, in order to govern their political, economic, and social domains. Indeed, the papacy's legal separation from the secular domain set the stage for and encouraged the development of parallel secular legal structures. While papal authority had a tendency to expand its domain and to assert its dominion over large areas of civil and domestic affairs, for example, over marriage and the family, inheritance, divorce, and the like, authority for control of such matters rested more on customary practice and Roman law than on biblical prescription. Hence, papal authority would eventually be forced to relinquish this control to secular authorities. As another church historian has put it, "In spite of the persistent tendency toward papal centralization, the whole Church, no less than the secular states, remained in a sense a federation of semi-autonomous units, a union of innumerable greater or lesser corporate bodies.

These developments in law and legal theory put European life on an entirely new footing. As an intellectual innovation, the canonists -- above all, Gratian -- had taken a very bold step in applying reason and logic to the great body of legal materials that they fashioned into a new legal system -- the canon law -- as Harold Berman has argued. Instead of insisting on the priority of or superior sacredness of any one part of the inherited legal traditions, Gratian (and others before him, such as Ivo and Irnerius) proceeded as if there were a natural harmony of law and legal reasoning in the world. Thus, Bishop Ivo of Chartres (in 1095) self-consciously sought to unite hte rules of the church "into one body," thereby becoming "one of the first to set forth conflicting passages in the authorities and to suggest some standard by which they could be reconciled." The task of the legist, they assumed, was to find the harmony of sources in precept and in principle that would unite and integrate the existing laws. It fell to Gratian to carry out this task and to succeed in a fashion that established a new standard that lasted for centuries. He collected and studied about thirty-eight hundred canonical texts from various periods of time and set about organizing them into new divisions and categories. In the second part of his work, he discussed specific legal issues in an effort to work out the general principles that should seve as the foundation for a working legal system.

As examples Gratian analyzed thirty-six complex cases "by presenting patristic, conciliar, and papal authorities pro and con, reconciling the contradictions where possible or else leaving them unresolved, offering generalizations and sometimes harmonizing the generalizations. Not only did the cases themselves present complex moral and legal issues, but Gratian and others found it necessary to work out a harmony between divine law, natural law, customary, national, and enacted law. In doing so, Gratian worked toward establishing a hierarchy of legal sources, in effect, a theory of legal sources.

He started by interposing the concept of natural law between the concepts of divine and human law. Divine law is the will of God reflected in revelation, especially the revelations of Scripture. Natural law reflected God's will. However, it is found in both divine revelation and in human reason and conscience. From this Gratian could conclude that "the law [leges] of princes [that is, of secular authorities] ought not to prevail over natural law [just naturale]." Likewise ecclesiastical "laws" many not contravene natural "law." "Ius," he wrote, "is the genius, lex a species of it."It is, perhaps, only in the context of the Islamic concepts of law and legal reasoning that we can appreciate the revolutionary quality of these innovations of Gratian and the canonists. For, as Harold Berman remarks, "the theory that custom must yield to natural law was one of the great achievements of the canonists." This was so because it established a new standard by which not only customary law but also ecclesiastical law could be judges for its justice and its fittingness. In the first case, "the theory of Gratian and his fellow canonists provided a basis for weeding out those customs that did not conform to reason and conscience." To accomplish this end, the canonists worked out elaborate legal texts, many of which are still in use today, to determine the validity of a custom. These included "its duration, its universality, its uniformity of application, its reasonableness." Such tests clearly pushed toward the establishment of the idea of the relativity of legal rules.

On the other hand, if such tests were to be applied to all laws, then the ecclesiastical laws might also be challenged by the test of natural law. Indeed, Gratian wrote that "enactments, whether ecclesiastical or secular, if they are proved to be contrary to natural law, must be totally excluded." This was an intellectual revolution of surpassing achievement in three senses.
TBC