In most Western countries, if a person is convicted of murder and sentenced to death, but goes insane between the moment of sentencing and the moment of execution, he is kept alive until he regains his sanity and only then is he executed. The reason for this unusual proviso is entirely theological: Only if the man is sane can he make a good confession, receive forgiveness for his sins, and hope to save his soul. Cases like this have led legal scholar Harold Berman to observe that modern Western legal systems “are a secular residue of religious attitudes and assumptions which historically found expression first in the liturgy and rituals and doctrine of the church and thereafter in the institutions and concepts and values of the law. When these historical roots are not understood, many parts of the law appear to lack any underlying source of validity.”1
Professor Berman’s scholarly work, particularly his magisterial Law and Revolution: The Formation of the Western Legal Tradition, has documented the influence of the Church on the development of Western law. “Western concepts of law,” he argues, “are in their origins, and therefore in their nature, intimately bound up with distinctively Western theological and liturgical concepts of the atonement and of the sacraments.”2
Our story begins in the early centuries of the Church. The first millennium, following the emperor Constantine’s Edict of Milan (which extended toleration to Christianity in 313), saw a frequent conflation of the roles of Church and state, often to the detriment of the former. To be sure, Saint Ambrose, the great fourth-century bishop of Milan, once proclaimed, “Palaces belong to the emperor, churches to the priesthood,” and Pope Gelasius famously formulated what became known as the “two swords” doctrine, according to which the world was ordered by two powers, one temporal and the other secular. In practice, though, this line was often blurred, and secular authority came to exercise more and more authority over sacred matters.
In 325, Constantine was already issuing a call for what became the Council of Nicaea, the first ecumenical council in Church history, to deal with the divisive issue of Arianism, a heresy that denied the divinity of Christ. Succeeding centuries saw far more involvement in Church affairs by secular rulers. The kings (and later emperors) of the Franks appointed Church personnel and even instructed them in matters of sacred doctrine. The same would later be true of French and English monarchs, as well as of other rulers of northern and eastern Europe. Charlemagne himself convened and presided over an important Church council at Frankfurt in 794. By the eleventh century the king-emperors of the German lands were appointing not only bishops but also popes.
In the ninth and tenth centuries, the problem of lay control of Church institutions grew particularly intense. The collapse of central authority in Western Europe during those centuries, as monarchs found themselves unable to cope with the waves of Viking, Magyar, and Muslim invasions, created opportunities for powerful landholders to extend their authority over churches, monasteries, and even bishoprics. Thus abbots of monasteries, parish priests, and even bishops were being appointed by laymen instead of by the Church.
Hildebrand, as Pope Saint Gregory VII was known before his elevation to the papacy, belonged to the party of radical reformers who sought not merely to persuade secular rulers to appoint good men but, more fundamentally, to exclude laymen from the selection of Church personnel altogether. The Gregorian Reform, which began several decades before the pontificate of the man after whom it is named, originated as an effort to improve the moral level of the clergy by insisting upon the observance of clerical celibacy and to abolish the practice of simony (the buying and selling of Church offices). Problems arising from efforts to reform these aspects of Church life brought the Gregorian party face to face with the real problem: lay domination of the Church. Pope Gregory had little chance of reversing the decadence within the Church if he lacked the power to name the Church’s bishops—a power that in the eleventh century was being exercised by the various European monarchs instead. Likewise, as long as laymen could name parish priests and abbots of monasteries, the multiplication of spiritually unfit candidates for these offices would only continue.
THE SEPARATION OF CHURCH AND STATE
Pope Gregory took a dramatic step when he described the king as simply and solely a layman, with no more of a religious function than any other layman. In the past, even Church reformers had taken for granted that while the appointment of Church officials by lesser secular rulers was indeed wrong, the king was an exception. The king was said to be a sacred figure with religious rights and responsibilities; some had even gone so far as to propose that the consecration of a king was a sacrament (a ritual that, like baptism and Holy Communion, imparted God’s sanctifying grace to the soul of the recipient). For Gregory, though, the king was just another layman, a non-ordained figure who had no right to intervene in the affairs of the Church. By extension, the state that the king ruled likewise possessed no powers over the Church.
The Gregorian Reform clarified the boundaries that must separate Church and state if the Church is to enjoy the liberty she needs to carry out her mission. Shortly thereafter, we find legal codes being drawn up in both Church and state, in which the powers and responsibilities of each in post-Hildebrand Europe are set down and made explicit. As the first systematic body of law in medieval Europe, canon law (that is, Church law) became the model for the various secular legal systems that would now begin to emerge.
Prior to the development of canon law in the twelfth and thirteenth centuries, nothing resembling a modern legal system existed anywhere in Western Europe. Since the advent of the barbarian kingdoms in the western Roman Empire, law had been intimately bound up with custom and kinship, and was not thought of as a distinct branch of learning and analysis independent of these things and capable of discerning general rules by which human beings could be bound. Canon law, too, had been in just such a state as late as the eleventh century. It had never been systematically codified, and consisted instead of scattered remarks from ecumenical councils, penitentials (books that assigned penances for sins), popes, individual bishops, the Bible, the Church fathers, and the like. Much of Church law was regional in nature, moreover, and was not universally applicable throughout Christendom as a whole.
The twelfth century began to change all that. The key treatise of canon law was the work of the monk Gratian, called A Concordance of Discordant Canons (also known as the Decretum Gratiani, or simply the Decretum), written around 1140. It is an enormous work, both in size and scope. It also constituted a historic milestone. According to Berman, it was “the first comprehensive and systematic legal treatise in the history of the West, and perhaps in the history of mankind—if by ‘comprehensive’ is meant the attempt to embrace virtually the entire law of a given polity, and if by ‘systematic’ is meant the express effort to present that law as a single body, in which all the parts are viewed as interacting to form a whole.”3 In a world in which custom rather than statutory law ruled so much of both the ecclesiastical and secular domains, Gratian and other canonists developed criteria, based on reason and conscience, for determining the validity of given customs, and held up the idea of a pre-political natural law to which any legitimate custom had to conform. Scholars of Church law showed the barbarized West how to take a patchwork of custom, statutory law, and countless other sources, and produce from them a coherent legal order whose structure was internally consistent and in which previously existing contradictions were synthesized or otherwise resolved. Such ideas would bear important fruit not only in Church law, as in the work of Gratian himself, but also in the secular legal systems that would be codified in its wake. Catholic legal thinkers “took a variety of texts—the Old Testament, the Gospel, ‘The Philosopher’—Aristotle, ‘The Jurist’—Justinian, the Church fathers, Saint Augustine, the Church councils; and by the use of the scholastic method and of a natural-law theory they were able to create out of these various sources, as well as out of the existing customs of their contemporary ecclesiastical and secular society, a coherent and rational legal science.”4
Twelfth-century European jurists, in the process of assembling modern legal systems for the emerging states of Western Europe, were thus indebted to canon law as a model. Equally important was the content of canon law, whose scope was so sweeping that it contributed to the development of Western law in such areas as marriage, property, and inheritance. Berman cites “the introduction of rational trial procedures to replace magical mechanical modes of proof by ordeals of fire and water, by battles of champions, and by ritual oaths [all of which had played a central role in Germanic folklaw]; the insistence upon consent as the foundation of marriage and upon wrongful intent as the basis of crime; the development of equity to protect the poor and helpless against the rich and powerful.”5
At the time that canon lawyers and Catholic jurists in the medieval universities sought to establish legal systems for Church and state, they were faced with an unfortunate fact: as late as the eleventh century, the peoples of Europe still lived under a barbaric mode of law. These scholars faced a situation in which “the prevailing law remained the law of blood feud, of trial by battle and by ordeals of fire and water and by compurgation.”6 We have already seen what trial by ordeal amounted to in practice: holding up people accused of crimes to tests devoid of anything like modern or rational rules of evidence. The rational procedures called for by canon law thus hastened the end of these primitive methods. Law is one of the important areas of Western civilization in which we are deeply indebted to the ancient Romans. But where the Church did not innovate she restored—a contribution often equally important—and her own canon law, with its rules of evidence and rational procedures, recalled the best of the Roman legal order in a milieu in which innocence and guilt were determined all too often by means of superstition.
The canon law of marriage held that a valid marriage required the free consent of both the man and the woman, and that a marriage could be held invalid if it took place under duress or if one of the parties entered into the marriage on the basis of a mistake regarding either the identity or some important quality of the other person. “Here,” writes Berman, “were the foundations not only of the modern law of marriage but also of certain basic elements of modern contract law, namely, the concept of free will and related concepts of mistake, duress, and fraud.”7 And by implementing these crucial principles in law, Catholic jurists were at last able to overcome the common practice of infant marriage that owed its origins to barbarian custom.8 Barbarian practice thus gave way to Catholic principle. Through the codification and promulgation of a systematic body of law, the salutary principles of Catholic belief were able to make their way into the daily practices of European peoples who had adopted Catholicism but who had all too often failed to draw out all its implications. These principles remain central to the modern legal orders under which Westerners, and more and more non-Westerners, continue to live.
When we examine the rules by which canon law sought to determine the criminality of a particular act, we discover legal principles that have since become standard in all modern Western legal systems. Canon lawyers were concerned with the intent of an act, with various kinds of intent, and with the moral implications of various kinds of causal connections. With regard to the last point, canonists considered examples such as this: Someone throws a stone to frighten his companion, but in the course of avoiding it the companion runs into a rock and causes himself great injury. He seeks medical assistance, but a doctor’s negligence causes him to die. To what extent was the throwing of the stone a cause of the man’s death? This was the kind of sophisticated legal question for which canon lawyers sought an answer.9
The same canonists introduced the equally modern principle that extenuating factors could exempt someone from legal liability. Thus, if one were insane, asleep, mistaken, or intoxicated, his apparently criminal actions might not be actionable. But these mitigating factors could excuse someone from legal liability only if as a result of them the accused could not have known that he was doing something wrong, and only if he had not wrongfully brought one or more of these conditions upon himself, as in the case of someone who purposely makes himself drunk.10
To be sure, ancient Roman law had distinguished between deliberate and accidental actions, and so had helped to introduce the idea of intent into the law. The eleventh- and twelfth-century canonists, as with the contemporaneous architects of the emerging legal systems of the secular states of Western Europe, drew upon the newly rediscovered law code that had been drawn up during the reign of the sixth-century emperor Justinian. But they made important contributions and refinements of their own and introduced them into European societies that had known nothing of these distinctions during the numerous centuries under barbarian influence.
The secular legal systems we have been describing here would also bear the distinct imprint of Catholic theology. For this part of our story we must examine the work of Saint Anselm of Canterbury (1033–1109).
Saint Anselm belongs to the early history of Scholasticism, that enormously significant and influential chapter of Western intellectual history that reached its height in the work of Saint Thomas Aquinas (1225–1274) but which persisted through the sixteenth and seventeenth centuries. We have already seen something of Saint Anselm’s devotion to reason in the brief overview of his ontological proof for the existence of God. That proof, an a priori argument for God’s existence, drew nothing from divine revelation and rested instead on the power of reason alone.
But it is to Saint Anselm’s work Cur Deus Homo that we turn in our discussion of the Western legal tradition, since that tradition was deeply influenced by this classic discussion of the purpose of the Incarnation and crucifixion of Christ. In that book, Saint Anselm was concerned with demonstrating on the basis of human reason why it was fitting that God should have become man in the person of Jesus Christ, and why Christ’s crucifixion—as opposed to some other method of redemption—was an indispensable ingredient in the redemption of mankind after the Fall and the expulsion of Adam and Eve from paradise. In particular, the author wished to address the natural objection: Why could God not simply have forgiven the human race for this original transgression? Why could he not have reopened the gates of Heaven to the descendants of Adam by means of a simple declaration of forgiveness, a gratuitous act of grace? Why, in other words, was the crucifixion necessary?11
Anselm’s answer went as follows.12 God originally created man in order that he might enjoy eternal blessedness. Man in a certain sense frustrated God’s intention by rebelling against Him and introducing sin into the world. In order for the demands of justice to be satisfied, man must be punished for his sin against God. Yet his offense against the all-good God is so great that no punishment he might suffer could offer Him adequate recompense. Whatever punishment he did suffer, moreover, would have to be so severe that at the very least he would have to forfeit eternal blessedness, but since eternal blessedness was God’s plan for man in the first place, such a punishment would undermine God’s purposes yet again.
The reason that God cannot simply forgive man’s sin in the absence of some form of punishment is that when man rebelled against God he disturbed the moral order of the universe. That moral order must be repaired. God’s honor must be restored, and that restoration cannot occur so long as the rupture of the moral order that occurred as a result of man’s rebellion remains in existence.
Since man owes restitution to God but is incapable of making it, while God could vindicate His own honor through a gratuitous act (but should not), the only way that atonement for original sin can take place is through the mediation of a God-Man. Thus does Anselm provide a rational account for the need for the atoning death of Jesus Christ.
The law of crimes as it emerged in Western civilization did so amid a religious milieu deeply influenced by Saint Anselm’s exposition of the doctrine of the atonement. That exposition rested fundamentally on the idea that a violation of the law was an offense against justice and against the moral order itself, that such a violation required a punishment if the moral order were to be repaired, and that the punishment should befit the nature and extent of the violation.
The atonement, according to Anselm, had to be carried out the way it was because by violating God’s law man had disturbed justice itself, and justice required the infliction of some punishment in order to vindicate the moral order. With the passage of time, it became common to think not just about Adam and Eve and original sin but also about the perpetrator of crime in the temporal realm: having violated justice in the abstract, he had to be subject to some punishment if the order of justice were to be restored. Crime became in large measure depersonalized, as criminal actions came to be viewed less as actions directed at particular persons (victims) and more as violations of the abstract principle of justice, and whose disturbance of the moral order could be rectified through the application of punishment.13
Contracts, it was said, must be kept, and if they were not, a price must be paid for their breach. Torts must be remedied by damages equivalent to the injury. Property rights must be restored by those who had violated them. These and similar principles became so deeply embedded in the consciousness—indeed, in the sacred values—of Western society that it became hard to imagine a legal order founded on different kinds of principles and values. Yet contemporary non-Western cultures do have legal orders founded on different kinds of principles and values, and so did European culture prior to the eleventh and twelfth centuries. In some legal orders, ideas of fate and honor prevail, of vengeance and reconciliation. In others, ideas of covenant and community dominate; in still others, ideas of deterrence and rehabilitation.14
THE ORIGINS OF NATURAL RIGHTS
The Church’s influence on the legal systems and legal thought of the West extends also to the development of the idea of natural rights. For a long time, scholars took for granted that the idea of natural rights, universal moral claims possessed by all individuals, emerged more or less spontaneously in the seventeenth century. Thanks to the work of Brian Tierney, one of the world’s great authorities on medieval thought, that thesis can no longer be sustained. When seventeenth-century philosophers set forth theories of natural rights, they were building upon an already existing tradition dating as far back as the Catholic scholars of the twelfth century.15 The idea of rights is one of the most distinctive aspects of Western civilization, and scholars are increasingly coming to acknowledge that it, too, comes to us from the Church. Prior to Tierney’s work, few people, scholars included, would have supposed that the origins of the idea of natural rights dated to twelfth-century commentators on the Decretum, Gratian’s famous compendium of the canon law of the Catholic Church. But it is with these scholars, known as the decretists, that the tradition in fact began.
The twelfth century exhibited great interest in and concern for the rights of certain institutions and certain categories of people. Beginning with the investiture controversy of the eleventh century, kings and popes engaged in lively exchanges over their rights vis-à-vis one another, a debate that was still alive and well over two centuries later in the pamphlet war that broke out between supporters of Pope Boniface VIII and King Philip the Fair of France in their seminal Church-state struggle. The lords and vassals of feudal Europe existed within a relationship of rights and obligations. The towns and cities that began to dot the European landscape with the renewal of urban life in the eleventh century insisted on their rights against other political authorities.16
To be sure, these were not assertions of what we would call natural rights, since in each case they involved rights of particular groups rather than rights that inhered in all human beings by nature. But it was in the context of a culture that frequently asserted the concept of rights that the canonists and other legal thinkers of the twelfth century began to derive the vocabulary and the conceptual apparatus that we associate with modern natural rights theories.
It happened this way. The various sources that were cited in the early chapters of Gratian’s Decretum—which appealed to everything from the Bible to the Church fathers, Church councils of varying import, papal statements, and the like—made frequent reference to the term ius naturale, or natural law. These sources, however, defined the term variously, and in ways that at times seemed to contradict each other. Commentators thus sought to sort out the various meanings that the term could hold. According to Tierney:
The important point for us is that, in explaining the various possible senses of ius naturale, the jurists found a new meaning that was not really present in their ancient texts. Reading the old texts with minds formed in their new, more personalist, rights-based culture, they added a new definition. Sometimes they defined natural right in a subjective sense as a power, force, ability, or faculty inhering in human persons. . . . [O]nce the old concept of natural right was defined in this subjective way the argument could easily lead to the rightful rules of conduct prescribed by natural law or to the licit claims and powers inhering in individuals that we call natural rights.17
The canonists, argues Tierney, “were coming to see that an adequate concept of natural justice had to include a concept of individual rights.”18
Specific examples of natural rights soon began to be identified. One was the right to appear and defend oneself against charges in a court of law. Medieval jurists denied that this right was merely granted to individuals by government statute, insisting instead that it was a natural right of individuals that derived from the universal moral law. More and more, the idea gained currency that individuals possessed certain subjective powers, or natural rights, by virtue of being human. No ruler could abridge them. As historian Kenneth Pennington explains, by 1300, European jurists
had developed a sturdy language of rights derived from natural law. During the period from 1150 to 1300, they defined the rights of property, self-defense, non-Christians, marriage, and procedure as being rooted in natural, not positive, law. By placing these rights squarely within the framework of natural law, the jurists could and did argue that these rights could not be taken away by the human prince. The prince had no jurisdiction over rights based on natural law; consequently these rights were inalienable.19
These all sound like fairly modern principles. But they come to us from medieval Catholic thinkers, who yet again established the crucial foundations of Western civilization as we know it.
Pope Innocent IV considered the question of whether fundamental rights of property and of establishing lawful governments belonged only to Christians, or whether these things rightly belonged to all men. At the time, an exaggerated pro-papalist opinion could be found in some circles, according to which the pope, as God’s representative on earth, was lord of the whole world, and therefore that legitimate authority and ownership could be exercised only by those who recognized papal authority. Innocent rejected this position, and instead held that “ownership, possession and jurisdiction can belong to infidels licitly. . . for these things were made not only for the faithful but for every rational creature.”20 This text would be cited to great effect by later Catholic rights theorists.
Rights language and the philosophy of rights continued to develop with the passage of time. Particularly significant was the debate that ensued in the early fourteenth century over the Franciscans, an order of mendicant friars founded in the early thirteenth century that shunned worldly goods and embraced lives of poverty. With the death of Saint Francis in 1226 and the continuing expansion of the order he founded, some were in favor of moderating the traditional Franciscan insistence on absolute poverty, often considered unreasonable for such a large, far-flung order. An extreme wing of the Franciscans, known as the “Spirituals,” refused all compromise, insisting that their lives of absolute poverty were a faithful replication of the lives of Christ and the apostles and therefore amounted to the highest and most perfect form of the Christian life. What began as a controversy over whether Christ and the apostles had in fact really shunned all property then developed into a profoundly fruitful and important debate over the nature of property that raised some of the central questions that would dominate the treatises of seventeenth-century rights theorists.21
What really solidified the natural-rights tradition within the West was the European discovery of America and the questions that Spanish Scholastic theologians raised with regard to the rights of the inhabitants of these new lands, a story we previously explored. (These theologians frequently quoted the statement of Innocent IV, above.) In developing the idea that the American natives possessed natural rights that Europeans had to respect, sixteenth-century theologians were building upon a much older tradition of discourse whose origins lay in the work of twelfth-century canon lawyers.
Thus it was in the Church’s canon law that the West saw the first example of a modern legal system, and it was in light of that model that the modern Western legal tradition took shape. Likewise, the Western law of crimes was deeply influenced not only by legal principles enshrined in canon law but also by Catholic theological ideas, particularly the doctrine of the atonement as developed by Saint Anselm. Finally, the very idea of natural rights, for a long time assumed to have emerged fully formed from liberal thinkers of the seventeenth and eighteenth centuries, in fact derives from Catholic canonists, popes, university professors, and philosophers. The more scholars investigate Western law, the greater the imprint of the Catholic Church on our civilization turns out to be, and the more persuasive her claim as its architect.