A Short Note on the Formation of the Western Legal Tradition

Blowhard, Esq. writes:

It’s quite easy to graduate from law school without learning much legal history. (It’s quite easy to graduate law school without learning how to be a lawyer, too, but that’s a rant for a different time.) OK, you do learn a little bit about the evolution of American law by reading cases, but a straight legal history class is pretty much never required. So questions like, Where does our legal tradition come from?, What makes it different than those of other countries?, How has it changed over time? are given light treatment. Anyone wanting to delve deeper has to do so on their own.

I was one of those people, so I’m happy I stumbled across Harold Berman’s Law and Revolution via the recommendations of Tom Smith and Don Boudreaux. What a wonderful book. Erudite, clear, and eye-opening. Berman’s thesis is that the Western legal tradition began in 1075 when Pope Gregory VII declared the Catholic Church independent from secular control. Previously, emperors and kings controlled the church. While there were many bishops, there was only one emperor or local king. The Church chaffed under the secular yoke — who were these earthly kings to dictate church law and appoint bishops? When he became pope, Gregory VII began a series of events that culminated in law as we know it today. Previously, in Western Europe, law was not seen as distinct body of rules carried on by specially-trained professionals. It was not systemitized. Berman writes:

In the late 11th, the 12th and the early 13th 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, and 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 Papal Revolution was also the beginning of the modern state. It in turn inspired the Protestant Reformation, all the way down to the English, American, French, and Russian Revolutions. (Here’s the Dictatus Papae, Gregory’s “manifesto” or “declaration of independence” from Henry IV, which reads a lot like the list of grievances in our own Declaration.)

Pope Gregory VII telling Henry IV to ‘eff off.

Even though during this period there was a rise in stronger central authorities, the Western legal tradition was created during a period of political instability as the Catholic Church and secular governments vied for power. As Berman makes clear, our legal tradition did not arise despite this political decentralization, it arose because of it. In the absence of a powerful central government, people spontaneously created and systematized their own laws. The lex mercatoria or “law of merchants,” is a product of this era. It emerged from the everyday actions of merchants.

The merchants created the law largely on their own, spontaneously from the bottom up, a law “not…established by the sovereignty of any prince.” They formed international fairs and markets, merchant courts, and city merchant offices. They created guilds to promulgate standards of honesty in commercial transactions. International treaties mediated commercial disputes between citizens of two treaty partners quickly and, if there was a lack of law on point, according to “good conscience.” They resisted ecclesiastical courts in their attempt to assert jurisdiction over mercantile cases.

As for the mercantile courts themselves, they were staffed by nonprofessional community tribunals. Judges, usually guild representatives, were elected. The judge then usually chose two or three other merchants to sit with him in court. Because businessmen tend to favor efficiency, the courts were noted for their speed and informality. Lawyers were excluded from the proceedings, technical legal arguments were discouraged, and appeals forbidden. (Ahhh, the good ‘ol days.)

Perhaps the most astonishing thing about this period, at least to me, is that many of the legal concepts created in the 11th and 12th centuries still survive today. The modern version of the lex mercatoria is known as the Uniform Commercial Code, the model statute that governs the sale of goods that has been adopted by most states. Among the enduring concepts that were created 900 years ago:

  • the distinction between movable objects (chattels) and immovable objects (land)
  • recognition of the rights of a good faith purchaser as superior to that of the true owner. Did you buy a stolen item innocently? For centuries the law has said someone who buys in “good faith” prevails over the “true owner.”
  • the distinction between actual delivery and symbolic delivery. An actual delivery is when I drop the piano off at your house. A symbolic delivery is when I give you a note that says you’re entitled to pick up the piano from my house.
  • recognizing the right of possession as distinct from the right of ownership. When I lend you my book, I give you the right of possession but I retain the right of ownership.
  • the implied warranties of merchantability and fitness for particular purpose
  • the difference between the contract price and market price for damages. I contract to sell you N widgets at $1 each. When time comes for delivery, widgets are going for $2 each on the open market. Depending on the circumstance of a contract breach, the aggrieved party might be entitled to the contract or market price.
  • the development of negotiable instruments. For example, bank checks.
  • the creation of security interests in goods. For example, liens.
  • the development of bankruptcy law. Previously, the Roman law of the Justinian codes heavily favored debtors, while creditors received virtually no protection. In contrast, the Germanic law heavily favored creditors, meaning debtors were left penniless. The emerging Western legal tradition struck a balance by leaving the debtor with sufficient funds to have a fresh start while giving preference to secured creditors, the guiding principle of our modern bankruptcy code.
  • the limited partnership

Pretty impressive if you ask me. It shows what powerful ideas and institutions people can create when they’re free of government control and left to their own devices. Is there any reason this can’t be the norm now? Thomas Sowell wonders “[w]hy the transfer of decisions from those with personal experience and a stake in the outcome to those with neither can be expected to lead to better decisions is a question seldom asked, much less answered.”

About Blowhard, Esq.

Amateur, dilettante, wannabe.
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4 Responses to A Short Note on the Formation of the Western Legal Tradition

  1. Fascinating stuff, tks. People self-organizing for their own decent purposes … Sounds like heaven on earth (or close enough) to me. When (and why and how) did all those nice mostly-unofficial citizens’ modes of organizing-and-taking-care-of-things start getting superseded by sanctioned/official/professional organizations?

    Sounds like the book’s author has an anarchist’s heart.

    Interesting to learn that law school doesn’t make you learn a little history-of-law. Seems crazy. But I understand that one of the big probs with economics is that economics grad schools don’t require any economics history, so maybe it’s just what professional schools do these days.

    I love “spontaneous order” as a tag, btw. I’ll have to start using that one myself.


  2. Pingback: Linkage | Breviosity

  3. nickUR says:

    As somebody who has done a fair amount of research in legal history, I see some great insights above, but also some anachronistic interpretations.

    The great insights include Berman’s recognition of the late 11th to early 13th centuries, and the Legal Revolution of that era, as crucial to the refounding of the West after the well-named Dark Ages. And your particular list of legal concepts and institutions is very important to understanding the West. I’d go so far as to say that any historian who doesn’t understand what’s on that list doesn’t actually understand Western history. Which alas would be most of them.

    But for the anachronisms: first, much of the above list of breakthroughs of the Legal Revolution was already taken for granted in the laws of the Roman Republic and Empire, and probably arose far earlier. Most of the Legal Revolution was (1) the coming of paper manufacture to Europe, which allowed a new far more literacy-dependent law to replace the largely oral law of the Dark Ages, and (2) the rediscovery Western Europe of much more of the highly respected Roman Law, per the codifications and textbooks of the last great Latin work on Roman law, Justinian’s 6th-century Roman legal commission, headed by the great jurist Tribonian. These led directly to (3) the birth of universities, and indirectly (via the great Italian municipal corporations, a.k.a. republics) to the commercial revolution, and many other benefits Berman cites. (It also would later, via the neo-Roman laws of evidence, give rise to the scientific method, but that’s a longer story Berman doesn’t tell).

    Second, emperors and kings shared jurisdiction with popes (especially after the Dictatus Papae), creating what we might well call two-headed government, with a religious and family law under the Pope (a modern parallel is Sharia law in Islam) and secular law under a hierarchy of temporal lords and corporations (guilds, cities, etc.) — the latter comparable to modern federalism. These varieties of jurisdictions were divied up, not based on contract or “anarchy”, but on an idea that has been forgotten by moderns, political property and the associated charters. A “charter” was essentially a property deed, and could as easily refer to political property as to land. In suggesting this was “anarchy” you may be a victim of the modern false dichotomy between the modern sovereign state and “anarchy” as its supposed only alternative. It was neither Hobbesian, nor contractarian, nor the modern state, but a means of politics and legal process that we’ve long since forgotten about.


  4. anon4ce says:

    NickUR is pretty spot on. An excellent intro to Roman law is Barry Nicholas, An Introduction to Roman Law. Worth checking out. Some of us needed an antidote to secured transactions in law school and found other ways to occupy our time.


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